DIVIDING AN ESTATE TO PAY KESUVOS [Kesuvah:collection]
(Mishnah): A man married three women on the same day, and died. Their Kesuvos are for 100, 200 and 300, respectively. If the estate is 100, they divide it evenly;
If the estate is 2, the first woman receives 50. The others receive 75 each;
If the estate is 300, they receive 50, 100 and 150, respectively.
The same applies to three people who invested money together. If there was a loss or profit, they divide like this.
(Gemara) Question: In case (2), why does the first woman get 50? She deserves only 33 and a third (a share of the first 100. She has no claim to the second 100!)
Answer #1 (Shmuel): The case is, the second woman wrote to the first 'I have no claim with you in 100 of the estate' (so the first and third women share that 100).
The second and third women both receive 75. The second did not concede anything to the third woman. She forfeited only the right to quarrel with the first woman and decrease her share of the first 100.
Question: In the Seifa, the second woman should receive only 75! (She has no claim to the third 100, so she should get the same as when the estate was 200!)
Answer #1 (Shmuel): The case is, (the second woman did not write anything, and) the third woman wrote to the first two 'I have no claim with you in 100 of the estate' (so the first and second women share that 100).
Answer #2 (to questions (e) and (j) - Rav Yakov from Nehar Pekod): The women seized Metaltelim of the estate at two times;
In case (2), they first seized 75 (which was split equally), and then the last 125. (The first woman takes an equal share (a third) of 75 of the 125, since the remaining lien for her Kesuvah was 75);
In case (3), they first seized 75, and then the last 225. (The first woman takes like above. The second woman gets (75,) like the third woman in 175 of the 225, for her remaining lien is 175. The third woman takes the last 50 herself.)
(Beraisa): This Mishnah is like R. Nasan;
Rebbi says, I disagree with R. Nasan. Rather, they split evenly.
Rif: Early Rabanan deliberated about our Mishnah and Gemara, and could not explain it. Therefore, they revert to assessment; they divide according to money (proportional to each woman's Kesuvah). They rely on Rebbi, who said 'they divide evenly.' They explain that this means according to money. This does not fit the Gemara nor the Mishnah. In the Reisha, all divide evenly. We understand if our Tana holds that we do not divide according to her money. In the Reisha they divide equally (33 and a third each). In the Seifa, they divide according to money. The Tana did not say so (rather, he gave the amounts), lest we think that the law is to divide according to money. Rather, it happened to occur. But if our Tana holds that we do divide according to her money (also in the Reisha), he should have taught the Reisha and Seifa the same way, i.e. in both cases say 'evenly' or in both cases 'according to money'! Rather, 'evenly' means equally. Rebbi` argues with the latter two clauses; he says that they always divide equally. Rav Hai Gaon was unhappy with prior explanations. He explained according to two people holding a Talis; I heard that he retracted in the end, and said that they divide according to money.
Note: Perhaps Rav Hai meant that we divide so that if we look at how much money any two women received together, they divided it according to the Halachah of two holding a Talis. E.g. in case two, the first two women received a total of 125. The first woman has a claim only to 100. The second woman takes the remaining 25, and they divide the other 100 equally. This works in every case of the Mishnah. There is always exactly one way to divide among all the women to fulfill this. Presumably, Rav Hai rejected this because if so, the Gemara could have explained the Mishnah without need to say that one pardoned some rights, or that they seized at two times.
Rif: I found the true Perush; it fits the Gemara. In the Reisha, all 100 is Meshubad to all three, so they divide equally. R. Nasan holds that in the second clause, they split the first 100 equally, and the latter two women split the second 100 equally (it is Meshubad only to them). When there is 300, they split the first 200 like above, and the third woman takes the last 100 herself.
Chavos Ya'ir (3): According to R. Nasan, the second woman should get 83 1/3 in each of the latter two clauses, and the third woman should get 83 1/3 and 183 1/3. This forced the Gemara to say that one pardoned her rights.
Rif: According to Rebbi, all divide equally, until each receives her full amount. If there was between 300 and 500, they divide 300 equally, and the latter two women divide the excess over 300. If there is more than 500, the last woman gets all the excess. According to R. Nasan, all divide equally the lowest amount of any woman (100; each gets 33 1/3). She is removed, and the others divide the rest up to the smallest remaining lien (166 2/3). If the estate exceeds the highest lien of any woman (300), they divide that amount (300) like we said. We divide the excess similarly from the beginning, based on their remaining liens. The Halachah follows Rebbi.
Hasagos ha'Ra'avad: All agree that the first woman gets a share only from the first 100, for her lien is only 100 (and the second has a share only from the first 200). They argue about whether or not it helps to pardon rights. If there is more than 300, they divide the excess from the beginning according to their remaining liens.
Rambam (Hilchos Ishus 17:8): If many women have Kesuvos to be paid from a man, and no one has precedence and there is not enough to pay all of them:
If we can divide the money equally and no one will get more than her Kesuvah, we do so. If there is more than this, we divide so each gets the amount of the smallest Kesuvah, and we divide the rest like from the beginning (based on their remaining liens). E.g. if there is 800 to be divided among women whose Kesuvos are 400, 300, 200 and 100, we divide 400 equally among the four women, 100 to each. Then we divide 300 among the first three. The last 100 is split equally by the first two women.
Rebuttal (Ra'avad): This is like the Rif. It is not clear at all.
Magid Mishneh: In Hilchos Malveh (20:4), the Rambam cites some Ge'onim who say that they divide proportional to their Kesuvos. The Rambam did not decide the Halachah there. Here he brings only the Rif's opinion. This shows that he rules like it.
R. Chananel (brought in Rosh 10:9): The Halachah follows Rebbi. We cannot say that they divide equally when there is 300. Rather, each gets proportional to her Kesuvah. This is proper. Rebbi argues in the first two cases, and agrees in the third. Partners in an ox divide proportionally to their shares (Bava Kama 36a). We establish Rebbi like this, to avoid a contradiction in Halachos. Also, Rebbi says that a Bechor gets a double share of the increase in value of the property after death (Bava Basra 124a).
Rebuttal (Rosh): These proofs are invalid. There, they are partners in inheritance or in an ox, so each gets proportional to his share. Here we discuss liens. There is a lien on all the property to pay each Kesuvah, therefore each divides equally until collecting her full Kesuvah! In the Seifa, partners divide proportionally. The Mishnah did not call this 'evenly'.
Note: The Mishnah did say that partners divide similarly.
Shulchan Aruch (EH 96:18): A man was married to four women. All their Kesuvos were signed on the same day; they were for 100, 200, 300 and 400, respectively. He died, and the estate is not enough to pay all of them. If we can divide the money equally and no one will get more than her Kesuvah, we do so;
If there is more than this, we divide so each gets the amount of the smallest Kesuvah, and we divide the rest like from the beginning.
SMA (CM 104:28): The Shulchan Aruch (like the Rambam) discusses dividing each amount among the creditors. This teaches that if he had different qualities of land, first we divide the Beinonis among them, then the Ziburis, then the Idis. (Note: this refers to creditors, whose primary lien is on Beinonis. We would start dividing the Ziburis to pay Kesuvos.)