משנה: שׁוֹמֶרֶת יָבָם שֶׁנָּֽפְלוּ לָהּ נְכָסִים מוֹדִין בֵּית שַׁמַּי וּבֵית הִלֵּל שֶׁמּוֹכֶרֶת וְנוֹתֶנֶת וְקַייָם. מֵתָה מַה יֵעָשֶׂה בִּכְתוּבָתָהּ וּבִנְכָסִים הַנִּכְנָסִין וְהַיּוֹצְאִין עִמָּהּ. בֵּית שַׁמַּי אוֹמְרִים יַחֲלוֹקוּ יוֹרְשֵׁי הַבַּעַל עִם יוֹרְשֵׁי הָאָב. וּבֵית הִלֵּל אוֹמְרִים הַנְּכָסִים בְּחֶזְקָתָן. כְּתוּבָּה בְחֶזְקַת יוֹרְשֵׁי הַבַּעַל. וּנְכָסִים הַנִּכְנָסִין וְהַיּוֹצְאִין עִמָּהּ בְחֶזְקַת יוֹרְשֵׁי הָאָב. MISHNAH: If property came to a woman waiting for her levir84She waits to be married in levirate or to be freed by ḥalîṣah. In the meantime, the ketubah, the money due her at the dissolution of her marriage (her dowry and the capital due her from her husband) is not payable since concerning money matters levirate is considered as continuation of the first marriage. The capital due from the husband is at least 200 zuz for a virgin, defined in Mishnah Peah 8:8 as sufficient to disqualify her from public assistence., the House of Shammai agree with the House of Hillel that she may sell or give away and it is valid85During the marriage, the husband has the administration and usufruct of her property. This power is not automatically transferred to the levir; it comes only with the actual levirate. Since the marriage with the first husband is now terminated, the administration of the properties is solely in her hands.. If she dies, what does one do with her ketubah and property that enters and leaves with her86Property she inherited or otherwise received during her marriage. In contrast to the dowry, for which the husband assumes responsibility in the ketubah contract and whose value only has to be returned at the dissolution of the marriage, these remain her property and, during marriage, may be sold or mortgaged only by the common action of the wife as owner and the husband as administrator. These properties are called נִכְסֵי מְלוֹג (Accadic mulūgu “wife’s property”), cf. Mishnah 8:1.? The House of Shammai say, the husband’s heirs should split with her father’s heirs. But the House of Hillel say that all property remains where it is; the ketubah in the hands of the husband’s heirs87Her dowry remains in the husband’s family. {This is a matter of civil law, not a religious precept. In the Middle Ages, many communities promulgated rules that returned all or part of the dowry of a childless marriage of short duration to the wife’s family.} and property that enters and leaves with her in the hands of her father’s heirs88They never were the husband’s property..
הלכה: שׁוֹמֶרֶת יָבָם שֶׁנָּֽפְלוּ לָהּ נְכָסִים כול׳. הָכָא אַתְּ אָמַר. מוֹכֶרֶת וְנוֹתֶנֶת וְקַייָם. מֵתָה מַה יֵעָשֶׂה בִּכְתוּבָתָהּ. וְהָכָא אַתְּ אָמַר. יַחֲלֹקוּ יוֹרְשֵׁי הַבַּעַל עִם יוֹרְשֵׁי הָאָב. אָמַר רִבִּי יוֹסֵי בֶּן חֲנִינָה. הֵן דְּאַתְּ אָמַר מוֹכֶרֶת וְנוֹתֶנֶת וְקַייָם. כְּשֶׁנָּֽפְלוּ לָהּ עַד שֶׁלֹּא הָֽיְתָה שׁוֹמֶרֶת יָבָם. וְהָא דְאַתְּ אָמַר יַחֲלֹקוּ יוֹרְשֵׁי הַבַּעַל עִם יוֹרְשֵׁי הָאָב. בְּשֶׁנָּֽפְלוּ לָהּ מִשֶּׁנַּעֲשֵׂית שׁוֹמֶרֶת יָבָם. נָֽפְלוּ לָהּ עַד שֶׁלֹּא נַעֲשֵׂית שׁוֹמֶרֶת יָבָם וְעָשׂוּ פֵירוֹת מִשֶּׁנַּעֲשֵׂית שׁוֹמֶרֶת יָבָם כְּמִי שֶׁנָּֽפְלוּ לָהּ מִשֶּׁנַּעֲשֵׂית שׁוֹמֶרֶת יָבָם. אָמַר רִבִּי זְעִירָא. הָהֵן יָבָם דְּהָכָא צְרִיכָא דְבֵית שַׁמַּי כְּבַעַל הוּא אוֹ אֵינוֹ כְבַעַל. אִין כְּבַעַל הוּא יוֹרֵשׁ אֶת הַכֹּל. אִם אֵינוֹ כְבַעַל לֹא יוֹרֵשׁ כְּלוּם. מִסָּפֵק יַחֲלוֹקוּ יוֹרְשֵׁי הַבַּעַל עִם יוֹרְשֵׁי הָאָב. בֵּית הִלֵּל פְּשִׁיטָא לֵיהּ כְבַעַל. וְיוֹרֵשׁ אֶת הַכֹּל. שֶׁכֵּן אֲפִילוּ אָחִיו אֵין לוֹ אֶלָּא אֲכִילַת פִּירוֹת בִּלְבַד. HALAKHAH: “If property came to a woman waiting for her levir,” etc. Here, you say “she may sell or give away and it is valid. If she dies, what does one do with her ketubah?” And you also say “the husband’s heirs should split with her father’s heirs!”89If she can dispose of the property without the consent of the husband’s family, the property belongs to her family. Why, according to the House of Shammai, should the late husband’s family get anything of the widow’s separate property? Rebbi Yose ben Ḥanina said90In the Babli, 38b, this is quoted as the opinion of Abbai (middle 4th Cent.), with a belated acknowledgment (39a) of the priority of R. Yose ben Ḥanina (middle 3rd Cent.). As Levy Ginzburg has pointed out, in the Babylonian Talmud the Babylonian authors are always mentioned before the Galileans; chronological order is followed within each group separately.
The wife of a childless man who has a brother becomes “a woman waiting for her levir” at the moment she is widowed., when do you say “she may sell or give away and it is valid”? If they came to her before she became a woman waiting for her levir. When do you say “the husband’s heirs should split with her father’s heirs”? If they came to her after she became a woman waiting for her levir. If they came to her before she became a woman waiting for her levir and produced revenue after she became a woman waiting for her levir, [that revenue is as if] they came to her after she became a woman waiting for her levir. Rebbi Ze‘ira91This opinion is not mentioned in the Babli. There, the opinion opposed to that of Abbai is that of Rava, who holds that the widow can only dispose of her property before “bespeaking”. For him, “bespeaking” for the House of Shammai makes the widow a wife in civil but not in criminal matters, while qiddushin makes the unencumbered woman a wife in criminal but not in civil matters. said, the levir in this situation is a problem for the House of Shammai. If he is a husband, he inherits everything. If he is not a husband, he inherits nothing. Because of the doubt, “the husband’s heirs should split with her father’s heirs.” For the House of Hillel it is obvious that he is a husband and inherits everything. For even his brother had only the usufruct92This sentence is the answer to an unasked question: If the husband inherits from his wife, why does the widow’s separate property return to her family? The answer is that this property, in contrast to the dowry, never was the husband’s. He only was the administrator and had the usufruct during her lifetime. The levir’s hand cannot be stronger than the husband’s. (The husband received the usufruct since he was under the obligation to provide for his wife a lifestyle appropriate to her social standing. This is one of the major topics of Tractate Ketubot.).
תַּנֵּי רִבִּי הוֹשַׁעְיָה. יִירְשׁוּ הַיּוֹרְשִׁין אֶת כְּתוּבָתָהּ חַייָבִין בִּקְבוּרָתָהּ. אָמַר רִבִּי יוֹסֵה. אִילוּלֵי דְתַנִּיתָהּ רִבִּי הוֹשַׁעְיָה הֲװָת צְרִיכָה לַן. מֵאַחַר שֶׁאֵין לָהּ כְְּתוּבָּה אֵין לָהּ קְבוּרָה. וְקַשְׁיָא. אִילּוּ אִשָּׁה שֶׁאֵין לָהּ כְּתוּבָּה שֶׁמָּא אֵין לָהּ קְבוּרָה. אִשָּׁה אַף עַל פִּי שֶׁאֵין לָהּ כְּתוּבָּה יֵשׁ לָהּ קְבוּרָה. בְּרָם הָכָא אִם יֵשׁ לָהּ כְּתוּבָּה יֵשׁ לָהּ קְבוּרָה. אִם אֵין לָהּ כְּתוּבָּה אֵין לָהּ קְבוּרָה. Rebbi Hoshaia stated: The heirs of her ketubah are obliged to bury her93This is also quoted in Babli Ketubot 81a. The discussion there is irrelevant for the Yerushalmi.
The heirs of the ketubah are the heirs of the husband since her death terminates the obligation of ketubah. Since the husband is freed from the obligation of paying the ketubah, he has to pay all costs connected with her funeral.. Rebbi Yose said, if Rebbi Hoshaia had not stated this, we would have had a problem. If she had no ketubah, do they not have to bury her? This is difficult. If a woman has no ketubah, does she not have to be buried94For example, if she sold her right to ketubah in case of dissolution of the marriage to her husband for current cash, nevertheless the husband is required to bear the expenses of her funeral. She must have had a ketubah to be married.? A wife, even if she has a ketubah, must be buried. This one, if she has a ketubah, is entitled to burial costs. But here, if she does not have a ketubah, she is not entitled to burial costs95In this case, the expenses have to be covered from her estate, and if she leaves no estate, from her family..