Siman 163

It is written: "And it shall be that the firstborn whom she bears shall succeed in the name of his deceased brother." Our sages, of blessed memory, received by tradition reaching back to Moses from Sinai that the entire verse is for an interpretive derivation and refers to the one performing yibbum, and not to the son who is born. "And it shall be that the firstborn" — from here we learn that the mitzvah is for the eldest to perform yibbum, as was written in siman 161. "Whom she bears" — this excludes an aylonit who does not give birth; that is to say, if the yevamah is an aylonit, she is not subject to yibbum, for there is no "establishing of seed" here. "Shall succeed... in the name of his deceased brother" — for inheritance; that is to say, he inherits all the property of his deceased brother, and neither the father nor the rest of his brothers take a portion in his inheritance. "That his name not be blotted out from Israel" — this excludes a saris; that is to say, if the yabam is a saris who does not father children, he does not perform yibbum, just as with an aylonit. And one cannot say that it refers to the son who is born, that he should be called by the name of his deceased brother, and the Torah commanded that the firstborn born to them should be called by his name—if the name of the deceased was Yosef, they call the firstborn Yosef; Yochanan, they call him Yochanan. It is stated here "shall succeed in the name of his brother," and it is stated elsewhere "they shall be called by the name of their brothers in their inheritance"; just as "name" stated there refers to inheritance, so too "name" stated here refers to inheritance (Gemara 24a). Furthermore, one cannot say that it indeed refers to inheritance but that the firstborn son should inherit all the property of his father, for there is no logic to this at all—for what is the sin of the other sons who will be born that they should not take a portion? It is understandable if it refers to the one performing yibbum, for he takes all the property and the sons he fathers will inherit from him; but that the first son should inherit everything is not a logical position at all. Furthermore, according to this, it should have written "shall succeed in the name of his father's brother" (Tosafot).

And regarding all these matters that came through tradition, they are explicitly stated in the scriptures in the Scroll of Ruth, for Boaz married Ruth, which was like the matter of yibum, as is explicit there, that he acquired the field of Mahlon and Chilion and married the wife of Mahlon. And it is written: "Moreover, Ruth the Moabitess, the wife of Mahlon, have I acquired to be my wife, to raise up the name of the dead upon his inheritance, that the name of the dead be not cut off, etc." And Rashi explained: Since his wife goes out and comes into the inheritance, and brings in and takes out, they say "this was the wife of Mahlon," etc. See there. Behold, it is explicit like the tradition of our sages of blessed memory, that the raising of the name is through the inheritance, and that the inheritance reaches the yabam, just as there the inheritance belonged to Boaz the one performing the yibum, and that it is not literally the name, for Boaz and Ruth did not call the firstborn born to them Mahlon, but rather Oved, as is explained there. And this too is explained there, that the essence is the procreation, that they shall procreate so that it is considered as if the dead procreated, as is written there: "There is a son born to Naomi." Therefore, the Torah prohibited a saris and an aylonit, who are not fit for the raising of seed, for this is the essence of raising the name of the dead. For would you think that if the dead left no inheritance his wife does not undergo yibum? Rather, the essence of raising the name is the seed, and the inheritance is also the raising of the name, as Rashi explained regarding Ruth. Therefore, the yabam does not take the inheritance until he has cohabitation with her, and even if he performed maamar with her, it is nothing, for there is no raising of the name in this. But when he has cohabitation with her, even if he died immediately or divorced her immediately, the property is his, for he has raised the name of the dead. (And there is room to doubt if she is from erusin and is a virgin, such that she does not conceive from the first cohabitation, whether there is the raising of the name in this; and it appears that there is no distinction, similar to what the Beit Shmuel wrote in siman 166, subsection 6).

The sages taught in the Mishnah (Bekhorot 51b) that the yavam does not take a portion in the appreciation that the properties appreciated after the death of the deceased, and he does not take in ra'ui as in muhzak. The explanation of these matters is that certainly from the appreciation that the properties of the deceased appreciated he takes, for they are his and his properties appreciated. However, if the father of the deceased died before the deceased brother, and the deceased has a portion in the inheritance, and before the brothers divided the properties the properties appreciated, and the appreciation was after the death of the deceased brother, behold, the yavam takes the portion of the deceased in the properties of the father, for the deceased was muhzak in it at the time he died, but he does not take the appreciation alone since it was still before the division. But if the deceased brother died before the father, the yavam does not take the portion of his deceased brother at all, for this is ra'ui, meaning that it was ra'ui for him to take a portion when the father dies, and the yavam does not take in ra'ui as in muhzak. And it is not similar to a grandson when he inherits the properties of the father, who takes his portion even if his father died before his grandfather (and in the appreciation that was before the division he does not take even if he already performed yibbum).

And our sages, of blessed memory, learned this (Yevamot 24b) from the fact that the Merciful One called the yavam a "firstborn," as it is written; his law is like that of a firstborn. Just as a firstborn does not take a portion of the birthright in that which is "fit to come" after the death of the father, nor in the appreciation that the property appreciated after the death of the father prior to division, as is explained in Choshen Mishpat siman 278, so too the yavam. Therefore, some say that any type of "fit to come" property from which a firstborn does not take a double portion, so too the yavam does not inherit alone. According to this, regarding a loan that the deceased left, the yavam does not inherit it alone, for regarding a firstborn this is called "fit to come," since a loan is given for expenditure and the money is in the possession of the borrower and not in the possession of the lender. And some say that the yavam takes in a loan and in other "fit to come" property, only that he does not take in the "fit to come" property of his father if he died after his brother. Our teacher, the Rema, wrote that the first opinion is primary.

And some say that they do not disagree at all, for regarding ra'ui from the assets of the brother himself from a loan that he left, he certainly takes, for it is entirely his, just as he takes in the enhancement of his assets as has been written. And only regarding ra'ui from the father, even though he died before the father, nevertheless, in a loan that the father left, and likewise other instances of ra'ui explained there, the yavam does not take the portion of the deceased, just as the bechor does not take a double portion in this (Beit Shmuel and the Gra, subsection 8). And there is one who says that from the words of the Tur above, siman 60, it appears that even from the assets of the brother himself the yavam does not take in ra'ui (Beit Shmuel, subsection 2). And his intention is to what the Tur wrote there regarding the portion of shoshvinut that was due to the deceased, that the yavam does not inherit it, see there, and so it is in the Gemara. And it appears to me that there is no proof from this, for one who examines the Gemara (Bava Batra 144b) will see that the obligation of shoshvinut, although it is specific to this brother, nevertheless it is the power of his father, for the father sends through this son, and therefore it is considered like ra'ui of the father. And some say further that even in the assets of the father it is called muhzak even if he died before the father, and ra'ui is called [only] in the assets of his father's father (ibid. in the name of Rabbeinu Yerucham), but from all the poskim it does not imply so. And I saw one who wrote that such is the opinion of Rashi and Ri, the author of the Tosafot (Knesset HaGedolah), and in my opinion it is not so (for it appears his intention is regarding what is written in Bechorot 52b: to include the assets of the father's father, and see there in Rashi, and there is no proof that regarding a bechor one must necessarily say so; and what Rashi wrote in Yevamot 24b, s.v. bechor etc., "even a yavam who takes a double portion in the assets of his father etc. does not take in ra'ui etc.," his intention is regarding a loan of his father, as has been written; and what he wrote in the name of Ri, I do not know to which place he intended). And it is clear as I have written, for so wrote the Nimukei Yosef in the name of the Ritva in Yevamot there, and he wrote that so agreed all the commentators, see there, and delve into this.

But one who performs chalitzah for his yevamah has no advantage over the rest of the brothers in the property of the deceased, and in any case, he has not lost his portion (Rashi 40a), and we do not say that we should penalize him because he did not perform yibum with her. And if there is a father there, the property belongs to the father, for he precedes in inheritance, and when he dies, his sons will inherit from him and each of the sons will take his portion. And even if he wanted to perform yibum but she did not want to, and he performed chalitzah for her, we do not say that since there was no hindrance on his part he should inherit everything, for ultimately he did not perform yibum, and the Torah made the inheritance dependent only on yibum. Therefore, he has no more in the property than any other heir. And all of this is regarding the property of the deceased that is in excess of the ketubah of the chalutzah; but if she waived some of her ketubah for the benefit of the one who performed chalitzah, he alone takes it (Knesset HaGedolah), and it is simple.

Our teacher, the Rema, wrote: Even before he has performed chalitzah, if the father seized [the property] and said, "I hold like the one who says the mitzvah of chalitzah comes first, and against the brothers' will they must perform chalitzah," we do not remove the assets from his hand. All this is according to the law, but there is already an enactment that the one who performs chalitzah receives half of the assets. Thus far his words. And this enactment will be explained in siman 165; see there. And the explanation of his words is that the father can hold the assets, and by holding them, automatically none of them will agree to perform yibbum. However, if despite this one of them performed yibbum, it is obvious that we remove the assets from the father and hand them over to the yabam, since the Torah granted them to him. And so it is implied from the source of the law from the Maharik, siman 91; see there. And it is understood automatically that in a place where they rule the mitzvah of yibbum comes first, the father cannot do this. And in a place where they do not allow performing yibbum, it is unnecessary to inform us. And he is dealing with a place where there is no decisive ruling on this law, and some perform chalitzah and some perform yibbum. And it is simple that the father cannot seize what belongs to the widow (and see Beit Shmuel, subsection 4).

The Rambam wrote in the fifth chapter of Laws of Inheritances: This is the rule regarding heirs: any two heirs where one of them is a certain heir and the second is a doubtful heir, the doubtful heir receives nothing. If both were doubtful—perhaps this is the heir or perhaps that is the heir—they divide equally. Therefore, etc. And a yevamah who did not wait three months after her husband's death and underwent yibum within three months and gave birth to a son, and it is not known if he is a nine-month child of the first husband or a seven-month child of the latter husband; and this doubtful son says, "Perhaps I am the son of the deceased and I shall inherit all of my father's property, and you were not fit to perform yibum with her as my mother was not subject to yibum," and the yavam says, "Perhaps you are my son and your mother was fit for yibum and you have nothing in my brother's property"—since this yavam is also a doubt, perhaps he is a yavam or perhaps he is not a yavam, they divide equally. And so is the law of this doubtful son with the sons of the yavam regarding the property of the deceased whose wife underwent yibum: they divide equally; the doubtful son takes half and the sons of the yavam take half, etc. Thus far his words. And it is an explicit Gemara in Yevamot (37b), and so wrote the Tur and the Shulchan Aruch in this siman.

There is a question regarding this: behold, we have established in Choshen Mishpat siman 139 that regarding any doubt of monetary ownership where both parties are in possession, such as the case of "two who are holding a garment," they divide it; and in any case where neither is in possession and neither has the presumption of the original owner (mara kamma), we say "whoever is stronger prevails" (kol d'alim gavar). Here too, let us say "whoever is stronger prevails," for behold, neither is in possession and there is also no presumption of the original owner. The answer to this is that the reasoning for "whoever is stronger prevails" only applies when each one claims with certainty "it is mine"; we say that whoever it truly belongs to will exert himself to prevail over his fellow and the judgment will emerge in its truth. Therefore, here, where the matter is hidden from everyone, "whoever is stronger prevails" does not apply, and division is preferable. Furthermore, since both come by power of inheritance, it is considered as if both are in possession of them and by law they must divide (Nimukei Yosef ibid.). This matter is explicitly stated in the Gemara (Bava Batra 158b), where they said there: since these come to inherit and those come to inherit, they shall divide. More than this, the Rosh, of blessed memory, wrote regarding this law (Hacholetz, section 8) that even if one of them is in possession of the assets, it is not a valid possession, since the assets are in the possession of the deceased and both come with a claim of doubt, and seizing due to doubt is not effective; see there. He follows his reasoning in the first chapter of Bava Metzia (section 13) that seizing is only effective when one claims with certainty, but seizing due to doubt is not effective, and we establish the assets in the possession of the deceased who is the mara kamma, and consequently they divide. Also, one should not ask why we do not consider the assets to be in the possession of the yavam, for immediately upon performing yibbum he acquired the assets, and this newborn comes to extract them from his hand—and how can he extract them from his hand with a claim of doubt? For this is not a question, since because most women give birth at nine months, we should have considered this newborn as certainly the son of the first husband and he is the heir; it is only because most women who give birth have their fetus recognizable at a third of its term, and this woman's was certainly not recognizable—for if it were recognizable, there would be no doubt here—therefore the majority is weakened, and it is like money whose ownership is in doubt and they divide (Rashba ibid.). Furthermore, we do not consider the assets of the deceased to be in the possession of the yavam except when he performed yibbum according to the law as he was required to perform yibbum; but this one who performed yibbum before three months and possibly transgressed a prohibition of karet and was not required to perform yibbum and committed a prohibition, how can we consider him a certain possessor of the assets by power of the yibbum? It is enough that we consider him a party in doubt (it appears to me).

However, the opinion of the Rosh and the Tur is that this law applies only when the father of the yavam is alive, but if he has already died, the properties remain in the possession of the yavam for another reason, for even without yibum, he is certainly his heir as he is his brother, and this one who was born is a doubtful heir, and a doubt does not remove from a certainty. But when the father is alive, the brother does not inherit at all in the place of the father, and he only inherits from the side of yibum, and both of them are equal in this right. The Rambam and other poskim did not distinguish in this, for according to the reasoning we wrote, since the majority of women give birth at nine months, it is impossible to consider the yavam as a certain heir. On the contrary, we should have considered the doubt as a certain heir from the side of the majority, and it is not relevant in this to say "we do not follow the majority in monetary matters," for this is only when the second party is seized of the money, and not here where neither of them is seized. And even if he seizes it, it is a seizure in doubt and is not effective, as I have written. Nevertheless, we do not consider him a certain heir because the majority was weakened, as I have written, but in any case, both of them are in the status of doubt. (The Maharsha questioned the Rosh, for according to the claims of the doubt that he is the son of the deceased, the yavam is not a certain heir, and how is this worse than a grandfather and a doubt regarding the properties of a yavam? And so questioned the Yam Shel Shelomo, Perek HaCholetz, siman 7, see there. And it is not a difficulty at all, for the intention of the Rosh is that at the time the yavam was in the world with the status of a certain heir, the doubt was not yet in the world, and when he was born, he came to remove it from him. And it is not similar to a grandfather and a doubt regarding the properties of a yavam, and so wrote the Korban Netanel, see there and examine carefully.) (And see Beit Shmuel, subsection 4, and his words require further study, for he separates this from a doubt and a yavam regarding the properties of a grandfather, and certainly in this the distinction is simple, and they questioned from a grandfather and a doubt regarding the properties of a yavam):

If the safek died before the distribution and the elder, the father of the yavam, says perhaps the safek was the son of my deceased son and I am his heir, and the yavam says perhaps he was my son and I am also his heir, it is likewise a case of safek and safek and the elder and the yavam divide it. But if the yavam died and the safek is alive, the property belongs to the safek in any event, for whether he is the son of the first deceased or whether he is the son of the yavam, he precedes the elder and any other person in inheritance regarding the property of the first deceased; for he is either his son or the son of the yavam who would have inherited him, and he inherits his father.

Regarding that which the Rambam wrote concerning a doubtful person and the sons of the yavam in the property of the deceased, that the doubtful person takes half and the sons of the yavam take half, it is to be wondered: for according to the claims of the doubtful person that he is the son of the deceased, all the property is his, and according to the claims of the sons of the yavam that he is also a son of the yavam, in any event he has a portion like one of them. If so, he should be a "certainty" regarding a portion of the property while they are a "doubt," and a doubt does not override a certainty. However, the Rishonim have already written that the fact that one is a certainty regarding a portion of the claim is not like being a certainty regarding the entire claim; for regarding two who are holding a garment, where this one says "it is all mine" and this one says "half of it is mine," we learned at the beginning of Bava Metzia that this one swears and that one swears, and this one takes and that one takes. We do not say that it all goes to the one who says "it is all mine" because he is a certainty regarding half of it, for they are not related to one another (Tosafot ibid.). And it is not similar to what will be explained regarding a doubtful person and a yavam in the property of the grandfather, where the yavam is a certainty and takes all of it; it is different there, for he knows with certainty that he is the heir of the grandfather and the doubtful person does not know, and therefore he is like a certainty regarding all the property. But here, the doubtful person himself does not know by what power he inherits, whether from the deceased or from the yavam, and he too is a doubt. And granted that in any event he has a portion of the property with certainty, this has no relevance to all the property, just as in the garment we wrote. Therefore, this one takes half and they take half.

However, his words are still puzzling in what he wrote, that the doubt takes half and they take half; for behold, they admit to him that he has a portion, and he does not admit to them at all. If so, he should first take the portion that they admit to him, and in the remainder they should divide. And in truth, all the Rishonim ruled so, as is written in the Tur and Shulchan Aruch, section 4. This is his wording: A doubt and the sons of the yavam who came to divide the property of the deceased—he says, "I am the son of the deceased and I shall take everything," and they say, "You are our brother and you have no portion except as one of us"—the portion that they admit to him he takes, and the rest they divide, and he takes half and they take half. Thus far his words. And more than this is puzzling, for the Rambam himself ruled so there regarding a doubt and the sons of the yavam in the property of the grandfather, that the portion they admit to him he takes, and in the remainder they divide, see there. And why should the property of the deceased be different from the property of the grandfather? For it is one reasoning and one doubt. (And the words of the Chelkat Mechokek, subsection 7, are puzzling, and what logic is this? And the words of the Maggid Mishneh there are lacking understanding, see there.)

And it appears to me that the reasoning of the Rambam is that it is impossible to grant him the doubt through two capacities, and likewise it is impossible to grant him more than his own claim. The explanation of the matter is that if we give to this doubt his portion that they admit to him, he would take this through the capacity of the yavam, for according to their words he is the son of the yavam and takes a portion with them; and regarding the remainder where he takes half, he would take through the capacity of the deceased. And how can he take through two capacities? This is not the case regarding the assets of the grandfather, where everything is through the capacity of the grandfather. And likewise, it is impossible to grant him more than his own claim, for behold, he claims that he is the son of the deceased, so how can we give him a portion and consider him as one of the sons of the yavam when he does not claim this himself? And it is indeed true that according to his claim all the assets are due to him, but in this we do not heed him because there is a doubt and they divide. This law is similar to the law explained in Choshen Mishpat at the end of siman 17, that a judge should not rule for a litigant more than what he claims himself, even though the judge sees that he could merit more, see there; and here too it is similar. But regarding the assets of the grandfather, he claims the assets of the grandfather and takes from the assets of the grandfather, and we are not concerned with the capacities of the intermediaries, to whom they belong (and perhaps this is the intention of the Maggid Mishneh, see there).

A doubtful son and the sons of the yavam who come to divide the property of the yavam: the sons of the yavam push aside the doubtful son entirely, because they are certain heirs of the yavam and he is in doubt if he is the son of the yavam, and a doubt does not remove from a certainty. Furthermore, even if prior to this the yavam and the doubtful son divided the property of the deceased as has been explained, and the property of the deceased was a small amount of property while the yavam left behind a large amount of property, the doubtful son cannot say: "In any case, if you do not give me a portion in the property of the yavam your father and you consider me the son of the deceased, return to me half of the property of the deceased that your father the yavam took; and if not, I will return the half that I took from the property of the deceased to the collective and take an equal portion with you in the property of the yavam." Even though his claim is good and he comes with the power of "in any case," nevertheless we hold that the law stands (kam dina). That is to say, since the law of the doubtful son and the yavam was already decided, and at its time such was the essence of the law, it is not relevant to the law of now; and now we also rule according to the law of now, that a doubt does not remove from a certainty. In the Gemara there is a dispute (ibid.) whether we say the law stands or the law returns in a case of "in any case," and the Rif and the Rambam agreed that we hold the law stands. And some say that it is a legal doubt, only that we do not remove from the possession of the heirs of the yavam due to doubt; and according to this, if the doubtful son seized it, we do not remove it from his hand.

It is stated in the Yerushalmi (Chapter 4, end of Halacha 2): If the yavam died and the safek came to take the portion of his father; if the first was poor, they say to him, "these are your father's," if he was wealthy, they say to him, "we are all brothers, sons of brothers, come and let us inherit the portion of our father and the portion of our father's brother." Thus far his words. And the commentators explained that this deals with after the safek and the yavam had already divided the property of the deceased, as in our Talmud, and the Yerushalmi holds that the judgment reverts. But it seems to me that the Yerushalmi does not deal with this at all, and it deals with where they did not manage to divide the property of the deceased until the yavam died, and now they must divide the two inheritances. In this, the power of the brothers is greater than the power of the safek, for if the deceased was poor and the yavam was wealthy, they push him away from the property of the yavam because they are certain and he is a safek, as I have written. And if the property of the deceased is plentiful and the property of the yavam is meager, since he is also a safek regarding the property of the deceased, they mix all the property and divide portion for portion as if he were also a certain son of the yavam. And even though when the yavam is alive and divides with the safek, the Yerushalmi admits that the safek takes half, as is stated there previously, nevertheless, when the yavam dies, he does not take more than one of the sons of the yavam, for since the two inheritances have not yet been divided, they mix the two inheritances and divide portion for portion. And it is possible that even our Talmud and all the poskim would not disagree on this, for specifically when we have before us only the inheritance of the deceased alone, in that case both are safek and the yavam and the safek divide. But when we have before us two inheritances, of the deceased and of the yavam, and each of them comes to inherit his father and his father's brother, and they know who is their father and who is their father's brother and the safek does not know, but in any event he also has here his father and his father's brother—and since they know with certainty who is their father and who is their father's brother and he is a safek in this, therefore their power is greater, as the choice is in their hand to say: if the first deceased was poor and the yavam wealthy, they push him away from the property of the yavam saying he is the son of the first; and if the opposite, they say to him, "you are our brother." And just as in every case of safek and certain, the certain has more power than the safek, so too in these two inheritances we give the certain ones more powers than to this safek (so it appears in my humble opinion). And therefore the poskim who ruled that the judgment reverts did not bring a proof from the Yerushalmi.

A safek and a yabam who come to divide the property of the elder, and the safek says, "I am the son of the deceased and I stand in his place to inherit his portion," we do not listen to him, and he takes nothing at all, because the yabam is a certain heir and he is a safek, and a safek does not remove property from a vaddi. However, a safek and the sons of the yabam who come to divide the property of the elder, and the safek claims half, saying that he is the son of the deceased, and the sons of the yabam say, "You are our brother and you have no portion except as one of us"—and for example, there are two sons from the yabam and they say the property should be divided into three portions, and he claims half—the law is as follows: the third that they admit to him, he takes; and the half that he admits to them, they take, and the two brothers shall divide it; and the remaining sixth is property whose status is in doubt, and he takes half and they take half. But if the safek died and the elder and the yabam came to divide his property, they divide it, for both of them come by power of doubt, as it is not known if he is the son of the deceased—and all the property would belong to the elder, for the father inherits the son—or if he is the son of the yabam, the elder has nothing. Similarly, when the yabam died and the elder and the safek came to divide his property, they divide it between them, for both are doubts (that which the Beit Shmuel questioned in subsection 10 regarding the view of the Rosh from the case of a safek and a yabam in the property of the deceased, this is the difficulty of the Maharsha and the Yam Shel Shlomo that we brought in section 10, and we answered it there with the help of Heaven, see there).

It is stated in the Yerushalmi (ibid.): If one of the brothers died, there is a definite brother and a doubtful son of a brother. This means that if one of the brothers of the yavam died, the doubtful one takes nothing, because the yavam is a definite heir since he is his brother, and the doubtful one, if he is the son of the yavam, is the son of his brother, and a doubt does not remove from a certainty. This is when the brother left no offspring and the grandfather is also not alive, for if it were not so, his brother would not inherit from him. It further says there: If the mother of the doubtful one died, there is a definite son and a doubtful husband. This means that the husband, who is the yavam, wants to inherit from her according to the law of a husband who inherits from his wife, but he takes nothing because the son is definitely her son and the husband is in doubt. This is not similar to the doubtful one and the yavam regarding the property of the deceased where they divide, for there the yavam is definitely a relative of the deceased since he is his brother, and regarding the inheritance there is a doubt as to who is more closely related for his inheritance. But here there is a doubt regarding the very essence of his relationship, whether he is her husband or not; for if the doubtful one is the son of the first husband, then he performed yibbum with a prohibition of karet and she is not his wife at all. Therefore, it further says there that even if the doubtful one died, her relatives inherit from her and not the husband, because they are definitely relatives and the husband is a doubt regarding the essence of the matter, whether he is a husband at all, as I have written.