Babylonian Talmud: Tractate Baba Bathra

Folio 115a

R. Johanan pointed out to R. Judah son of R. Simeon [the following objection: Have we not learnt]. A WOMAN [TRANSMITS HER ESTATE TO] HER SONS AND [TO] HER HUSBAND [BUT DOES NOT INHERIT FROM THEM]; AND MOTHER'S BROTHERS TRANSMIT [THEIR ESTATES TO THEIR NEPHEWS] BUT DO NOT INHERIT [FROM] THEM?¹  — He replied to him: As to our Mishnah, I do not know who is its author!²  But why did he not say³  to him [that] it⁴  [may represent the views of] R. Zechariah b. Hakkazzab who does not expound, tribes?⁵  — Our Mishnah cannot be upheld as [representing the views of] R. Zechariah h. Hakkazzab, for it teaches, AND SISTERS'⁶  SONS. And a Tanna taught⁷  [that this implies] sisters'⁶  sons [only], but not sisters'⁶  daughters; and the question was asked,⁸  'In respect to what law?' And R. Shesheth answered, 'In respect of precedence'.⁹  Now, if it were assumed that our Mishnah was [a representation of the views of] R. Zechariah b. Hakkazzab. [it could rightly have been objected]: Surely, he said, 'Both a son and a daughter [have] equal [rights] in [the inheritance of] a mother's estate'!¹⁰

[As to] the Tanna of our [Mishnah], how are his views to be reconciled?¹¹  If he expounds, tribes, a woman also should he heir to her son;¹²  if he does not, whence does he [deduce the law] that a son takes precedence over a daughter in [inheriting] his mother's property?¹³  — He does, in fact,¹⁴  expound, tribes,¹⁵  but here,¹⁶  [the case] is different, for Scripture says, And every daughter, that possesseth an inheritance¹⁷  [from which it is to he inferred that] she may inherit from,¹⁸  but not transmit¹⁹  to [her mother].²⁰

MISHNAH. THE ORDER OF SUCCESSION²¹  IS AS FOLLOWS: IF A MAN DIE, AND HAVE NO SON, THEN YE SHALL CAUSE HIS INHERITANCE TO PASS UNTO HIS DAUGHTER.²²  A SON TAKES PRECEDENCE OVER A DAUGHTER. ALL LINEAL DESCENDANTS²³  OF A SON²⁴  TAKE PRECEDENCE OVER A DAUGHTER.²⁵  A DAUGHTER TAKES PRECEDENCE OVER THE BROTHERS.²⁶  LINEAL DESCENDANTS²⁷  OF A DAUGHTER [ALSO] TAKE PRECEDENCE OVER THE BROTHERS. BROTHERS TAKE PRECEDENCE OVER THE BROTHERS OF THE FATHER.²⁵  LINEAL DESCENDANTS²⁸  OF BROTHERS [ALSO] TAKE PRECEDENCE OVER THE BROTHERS OF THE FATHER.²⁷  THIS IS THE GENERAL RULE: THE LINEAL DESCENDANTS OF ANY ONE WITH A PRIORITY TO SUCCESSION²⁹  TAKE PRECEDENCE. A FATHER TAKES PRECEDENCE OVER ALL HIS DESCENDANTS.³⁰

GEMARA. Our Rabbis taught: [It is written,] son,³¹  [from which] one only learns that³²  a son [has a prior claim to heirship]; whence [may it he deduced that] a son of the son, or a daughter³³  of the son, or a son of the daughter of the son [has the same rights]? — It is expressly stated, En lo³⁴  [which is taken to imply], 'hold an enquiry³⁵  concerning him'.³⁶  [It is written] daughter,³⁷  [from which] one only learns that³²  a daughter [is next in succession to a son]; whence [may it he deduced that] a daughter of the daughter. and the son of a daughter and a daughter of the son of the daughter [have also the same rights]? — It is expressly stated, En lo³⁴  [which is taken to imply], 'hold an enquiry³⁵  concerning him'.³⁶

1. Which clearly shows that a woman cannot be heir to her son.
2. It is unreliable.
3. Lit., 'and let him say'.
4. Our Mishnah,
5. Supra 111a.
6. Some read, 'a sister's'.
7. Supra 113a.
8. Supra 113b.
9. If there are nephews and nieces, the former, not the latter, are the heirs of their uncles.
10. Since the children of a sister become heirs to their uncles, through their mother's right of inheritance, nephews and nieces (i.e., the sons and daughters of the uncles' sister) should have equal rights in their uncles' estates just as they have them in the case of their mother's estate. Our Mishnah which gives nephews precedence over nieces cannot, therefore, represent the views of R. Zechariah.
11. Lit., 'from whatever (be) your opinion'. i.e., whatever view be adopted there is a difficulty.
12. As has been deduced from tribes, supra 114b, end.
13. This law also has been deduced, (supra 111a, end), from the expression tribes,
14. Lit., 'always'.
15. Hence his view that a son takes precedence (V. n. 3, supra).
16. The proposed deduction from the expression, tribes, that a mother is heir to her son,
17. Num. XXXVI, 8, and this verse deals with a daughter who is heir to her mother, as explained, supra 111a.
18. [H] yoresheth, is the expression used in the Biblical verse.
19. [H] Moresheth.
20. And as a daughter does not transmit her estate to her mother, so also a son; hence the law in our Mishnah that a mother is not heir to her son.
21. Lit., 'inheritances'.
22. Num. XXVII, 8.
23. Lit., 'those who came out of his loins'.
24. His sons, grandsons, or any male descendants of these, no matter how many generations removed from the deceased.
25. Of the deceased.
26. (V. previous note) and also over his father,
27. Lit., 'those who came out of her loins'.
28. Cf. previous note and n. 13.
29. If he predeceased them.
30. I.e., the brothers and sisters of his deceased son, and their descendants. He has, however, no claim at all if his deceased son is survived by his own sons or daughters or any of their lineal descendants.
31. Num. XXVII. 8.
32. Lit., 'I only have'.
33. Where there is no son, a son of the son, or a son of the daughter of the son,'
34. Ibid. [H].
35. [H] or [H] 'examine', 'search', 'investigate'. 'Aleph ([H]) and 'Ayin ([H]) are interchangeable.
36. The deceased; i.e., inquire whether he has been survived by descendants or any descendants of his descendants who might claim to succeed to his estate.
37. Ibid.

In what manner [is] this [enquiry carried out]? — [In a manner that] the estate may ultimately find its way¹  to Reuben.²  Let him say. 'to Jacob'!³  — Abaye replied: We have it by tradition that no tribe would become extinct.

R. Huna said in the name of Rab: Anyone, even a prince in Israel, who says that a daughter is to inherit with the daughter of the son, must not he obeyed; for such [a ruling] is only the practice of the Sadducees. As it was taught: On the twenty-fourth of Tebeth we returned to our [own] law;⁴  for the Sadducees having maintained [that] a daughter inherited with the daughter of the son, R. Johanan h. Zakkai joined issue with them. He said to them: 'Fools, whence do you derive this?' And there was no one who could reply a word, except one old man who prated at him and said: 'If the daughter of his son, who succeeds⁵  [to an inheritance] by virtue of his son's right, is heir to him, how much more so his daughter who derives her right from himself!' He⁶  read for him this verse, These are the sons of Seir the Horite, the inhabitants of the land: Lotan and Shobal and Zibeon and Anah,⁷  and [lower down] it is written, And these are the children of Zibeon: Aiah and Anah!⁸  — [But this] teaches that Zibeon had intercourse with his mother and begat Anah.⁹  Is it not possible that there were two [called] Anah? — Rabbah said: I would say something which King Shapur¹⁰  [could] not have said; — and who is he? — Samuel; others say [that it was] R. Papa [who] said: I would say something which King Shapur [could] not have said — and who is he? — Raba;¹¹  'Scripture says: This is Anah, [implying]: The same Anah that was [mentioned] before' — He said unto him: O, master, do you dismiss me with such [a feeble reply]?¹²  — He said to him: Fool,

1. Lit., 'goes on groping'.
2. The first ancestor of the tribe. As inquiries have to be made for descendants so, if no surviving descendants can be traced, similar inquiries have to be instituted for paternal ancestors and their rightful heirs. If, for example, the deceased has neither issue, nor a surviving father, brother, nephew (brother's son), niece, sister, nephew (sister's son); and none of the descendants of these is alive. And if inquiry has also established that there exists no surviving father's father, nor father's brother, father's nephew (father's brother's son), father's sister, nor nephew (father's sister's son), further inquiries must be carried on in descending order. Once it has been definitely established that none of the line survives, enquiries are instituted in an ascending order, on the paternal side, and are carried on from father (including their heirs, as in the case of the descending line), until the first ancestor of the tribe is reached. There is no need to go any higher since if any single member of the tribe survived his relationship to the deceased could be established.
3. Why only as far as Reuben?
4. The Sadducees recognised that the Rabbis were right, and the latter, therefore, were again to administer the law in accordance with their views.
5. Lit., 'comes'.
6. R. Johanan.
7. Gen. XXXVI, 20.
8. Ibid. v. 24. How could Anah be a son and a brother to Zibeon?
9. Anah was consequently his son and, being a son of his mother, also his brother. Anah, though a grandchild of Seir, is described as of the inhabitants of the land (Gen. XXXVI, 20) which proves that grandchildren have the same right of inheritance as children.
10. Shapur I, a king of Persia, was known for his friendship with Samuel, and the title was sometimes used as a surname of the latter. Raba also was sometimes so surnamed on account of his friendship with Shapur II.
11. [So Ms.M.; cur. edd., Rabbah!]
12. My point is that a son's daughter has no more rights than a daughter, and you bring an instance from the law of a son's son which the Sadducees do not dispute.