to it in his estate; it is therefore not regarded as property, though one may derive benefit from it. The rest of the estate is property that may be owned and used. Accordingly, if the testator has three equivalent dogs and bequeaths one dog to this man, the bequest takes effect whether the heirs approve it or not, because they retain two-thirds of this category.

They say likewise regarding contaminated oil that it is not property and therefore may not validly be sold. Yet benefit may be derived from it, for it belongs to the category of things that are not regarded as property.

His statement, “even if the estate is large,” alludes to a differing view.

Some scholars maintain that, if it does not exceed one-third—assuming it were assigned a value—the heirs’ approval is not required, and the beneficiary must receive it in all cases. This is because the prohibition against bequeathing more than one-third is intended to protect the heirs’ rights, and in this case they suffer no loss. Even if they were to sell this dog, it could not be sold. Thus, the correct view is that the entire dog belongs to the beneficiary.

His statement, “A bequest of an unspecified item, such as a slave or a ewe, is valid,” means that a bequest of an unknown item is valid. If a bequest is valid with respect to something nonexistent, then it is even more so with respect to something unknown. Here, “unknown” includes what is unspecified: the unknown case is for someone to say, “I bequeath a slave to so-and-so,” whereas the unspecified case is for him to say, “I bequeath one of my slaves to so-and-so.” The uncertainty in the latter case is less than in the former. Scholars call it unspecified because it is known in one respect and unknown in another: it is known insofar as it is limited to a defined group, but unknown insofar as it has not been designated.

Is he to be given the most expensive slave, the least expensive slave, or what? Likewise, if he bequeaths a ewe to him, is he to be given the least valuable ewe, a fat ewe, or what?