Bava Batra 265:1

אמר ליה רב כהנא אילו הדר קני מי לא שקלא וכיון דאילו הדר קני שקלא השתא נמי שקלא

R. Kahana, [however], said to him: If [her husband] had [subsequently] bought other property would she not [have been entitled to] seize [it]?<span class="x" onmousemove="('comment',' In payment of her kethubah. She only renounced her claim upon that property which her husband gave to his daughters at the time her share was assigned to her. ');">¹</span> Now, since if he had bought other property she would [have been entitled to] seize [it],<span class="x" onmousemove="('comment',' In payment of her kethubah. She only renounced her claim upon that property which her husband gave to his daughters at the time her share was assigned to her. ');">¹</span> in this case too she [is] also [entitled to] seize [the dead daughter's third].<span class="x" onmousemove="('comment',' Lit., 'now'. The third that her husband inherited from his dead daughter is regarded as new property acquired by him after the assignments were made. (V. previous note). ');">²</span> [Once] a certain [dying] man divided his estate between his wife and his son, [and] left over one palm-tree.<span class="x" onmousemove="('comment',' Which he assigned to no one. ');">³</span>

ההוא דפלגינהו לנכסיה לאתתיה ולבניה שייר חד דיקלא סבר רבינא למימר לית לה אלא חד דיקלא אמר ליה רב יימר לרבינא אי לית לה חד דיקלא נמי לית לה אלא מיגו דנחתא לדיקלא נחתא נמי לכולהו נכסי

Rabina intended to give his decision [that] she<span class="x" onmousemove="('comment',' The widow. ');">⁴</span> can only have<span class="x" onmousemove="('comment',' In payment of the balance of her kethubah. ');">⁵</span> [that] one palm-tree.<span class="x" onmousemove="('comment',' She has no claim, however, on the share which the son received. Since a wife is assumed to renounce her claims in the case where her husband assigned to others all his estate with the exception of any small fraction allotted to her, she must also be assumed to have renounced her claims in this case, where only one palm-tree was not disposed of, in consideration of the share allotted to her. ');">⁶</span> R. Yemar, [however], said to Rabina: If she had no [claim upon the son's share], she [should] have no [claim] even [upon] the one palmtree.<span class="x" onmousemove="('comment',' Just as she renounced her claim upon the share of the son in consideration of the share allotted to her, so she must have renounced her claim upon the palm-tree. She well knew that besides her share, her husband had no property other than that palm-tree and the share assigned to the son. As she forfeits her rights in the case of the one, so she should forfeit them in the case of the other. ');">⁷</span>

אמר רב הונא שכיב מרע שכתב כל נכסיו לאחר רואין אם ראוי ליורשו נוטלן משום ירושה ואם לאו נוטלן משום מתנה

But since she may seize<span class="x" onmousemove="('comment',' Lit., 'go down'. ');">⁸</span> the palm-tree she may also seize<span class="x" onmousemove="('comment',' Lit., 'go down'. ');">⁸</span> all the estate.<span class="x" onmousemove="('comment',' Even the share that was given to the son. A wife is assumed to renounce the claims to which her kethubah entitles her only when her husband had disposed of all his estate, in which case she must have known that nothing was left for her kethubah and, since she did not protest, she must have acquiesced in its forfeiture. When, however, one palm-tree remains, she is assumed to rely on the proceeds of that tree for the payment of the kethubah. Consequently, she does not renounce her rights; and her silence is assumed to be due to a desire for postponing her protest until the value of the tree had been ascertained. When, therefore, it becomes known that the palm-tree does not cover the amount of her kethubah, she is entitled to seize any other part of the estate also. ');">⁹</span> R. Huna said, [if] a dying man assigned all his estate, in writing, to another [person]<span class="x" onmousemove="('comment',' Not specifying whether as an 'inheritance' or as a 'gift'. ');">¹⁰</span>

אמר ליה רב נחמן גנבא גנובי למה לך אי סבירא לך כרבי יוחנן בן ברוקה אימא הלכה כרבי יוחנן בן ברוקה דהא שמעתתיך כר' יוחנן בן ברוקה הוא דאזלא

the matter is to be investigated.<span class="x" onmousemove="('comment',' Lit., 'we see'. ');">¹¹</span> If he<span class="x" onmousemove="('comment',' The assignee. ');">¹²</span> is entitled to be his heir, he receives it as an inheritance; and if not, he receives it as a gift. R. Nahman said to him: Why should you indulge in circumlocution!<span class="x" onmousemove="('comment',' 'O thou cunning man, what is the use of thy going round about?' (Jast.). ');">¹³</span> If you hold [the same view] as R. Johanan b. Beroka,<span class="x" onmousemove="('comment',' That one has a right to assign all his estate to one of his legal heirs, V. supra 130a. ');">¹⁴</span>

דלמא כי הא קאמרת דההוא דהוה קא שכיב ואמרו ליה נכסיה למאן דלמא לפלניא ואמר להו אלא למאן ואמרת לן עלה אם ראוי ליורשו נוטלן משום ירושה ואם לאו נוטלן משום מתנה אמר ליה אין הכי קאמינא

say, 'The <i>halachah</i> is according to R. Johanan b. Beroka', for, indeed, your statement runs on [the same lines] as [those of] R. Johanan b. Beroka? [But], perhaps, you meant [your statement to apply to a case] like the following.<span class="x" onmousemove="('comment',' I.e., to a case when the testator had no sons or daughters, contrary to the opinion of R. Johanan b. Beroka who allows it even when there is a son or a daughter (R. Gersh.). According to Rashb., the suggestion of R. Nahman is that R. Huna wishes to state the case where the testator was vague in his instructions and did not declare whether the bequest was to be in the terms of a gift or those of an inheritance. ');">¹⁵</span> Once, while a person was in a dying condition he was asked to whom his estate shall be given. '[Shall it] perhaps [be given] to X?' he was asked. And he replied to them, 'To whom [else] then?' And [is it] on [such a case as] this [that] you told us, '[If that person] is entitled to be his heir he receives it as an inheritance, and if not, he receives it as a gift?' — He replied to him: 'Yes, this [is exactly] what I meant'. In respect of what legal practice?<span class="x" onmousemove="('comment',' Does it matter whether the estate was given as a gift or ass 'inheritance'? ');">¹⁶</span> — R. Adda b. Ahabah wished to explain<span class="x" onmousemove="('comment',' This difference. ');">¹⁷</span>

למאי הלכתא סבר רב אדא בר אהבה קמיה דרבא למימר אם ראוי ליורשו אלמנתו נזונית מנכסיו ואם לאו אין אלמנתו נזונית מנכסיו

before Raba [that] if he<span class="x" onmousemove="('comment',' The person named. ');">¹⁸</span> is entitled to be his heir his<span class="x" onmousemove="('comment',' The testator's. ');">¹⁹</span> widow is maintained out of his estate,<span class="x" onmousemove="('comment',' Which he inherited from her husband. ');">²⁰</span> and if not, his<span class="x" onmousemove="('comment',' The testator's. ');">¹⁹</span>

אמר ליה רבא מיגרע גרעא השתא בירושה דאורייתא אמרת אלמנתו נזונית מנכסיו במתנה דרבנן לא כל שכן

widow is not maintained out of his estate.<span class="x" onmousemove="('comment',' Which he inherited from her husband. ');">²⁰</span> Raba, however, said to him: Should she be worse off [in the case of a gift]? If<span class="x" onmousemove="('comment',' Lit., 'now'. ');">²¹</span> in [the case of] an inheritance which is Biblical,<span class="x" onmousemove="('comment',' The laws of inheritance are enumerated in Numbers and Deuteronomy. ');">²²</span> it has been said [that] his<span class="x" onmousemove="('comment',' The testator's. ');">¹⁹</span>

אלא אמר רבא כדשלח רב אחא בר רב עויא לדברי רבי יוחנן בן ברוקה נכסי לך ואחריך לפלוני אם היה ראשון ראוי ליורשו אין לשני במקום ראשון כלום שאין לשון מתנה אלא לשון ירושה וירושה אין לה הפסק

widow is to be maintained out of his estate,<span class="x" onmousemove="('comment',' V. p. 558, n. 11. ');">²³</span> how much more [should that be so] in [the case of] a gift<span class="x" onmousemove="('comment',' Made by a dying man without a properly binding agreement. ');">²⁴</span> which is only Rabbinical?<span class="x" onmousemove="('comment',' According to Biblical law a gift made in such a manner is not legally binding and remains part of the estate. ');">²⁵</span> But, said Raba, [the difference<span class="x" onmousemove="('comment',' Between 'gift' and 'inheritance'. ');">²⁶</span>

אמר ליה רבא לרב נחמן והא אפסקה הוא סבר יש לה הפסק ורחמנא אמר אין לה הפסק

lies in a case] like [the following] which [was] sent [by] R. Aha son of R. 'Awya: According to the view of R. Johanan b. Beroka, [if a dying man said], 'My estate [shall be] yours, and after you [it shall be given] to X', if the first was [one] entitled to be his heir, the second has no [claim] whatsoever beside the first, for this is not a [specific] expression of 'gift' but [rather] of 'inheritance', and an inheritance cannot be terminated.<span class="x" onmousemove="('comment',' V. p. 540, n. 10 and 11, supra. Similarly, in the case under discussion, if the dying man said, in reply to the question whether his estate shall be given to a certain person, 'To whom else? But after him it shall be given to a certain other person,' the second is entitled to receive it only if the first was not a legal heir and received it as a gift. ');">²⁷</span> Raba said to R. Nahman: Surely, he<span class="x" onmousemove="('comment',' The testator. ');">²⁸</span> has [already] intercepted it!<span class="x" onmousemove="('comment',' By making the assignment of the estate to the first conditional upon its being transferred later to the second. ');">²⁹</span> — He thought [erroneously] that it could be intercepted but the All-Merciful said, 'It cannot be terminated'.<span class="x" onmousemove="('comment',' Since the divine word prohibits interception of the succession no one has the right to make arrangements which disagree with it. ');">³⁰</span>