Babylonian Talmud: Tractate Baba Bathra

Folio 140a

would the daughters receive all of it!¹  — But, said Raba, [the amount, required for] the maintenance of the daughters until they reach their majority is drawn [from the estate] and the balance is given to the sons.

[It is] obvious [that, if the estate was] large²  and it depreciated,³  the heirs have already acquired ownership thereof.⁴  What [is the law, however, if the estate was] small⁵  and it appreciated;⁶  does it remain in the possession of the heirs⁷  and, consequently, has appreciated in their possession⁸  or are the heirs,⁷  perhaps, entirely disregarded here?⁹  — Come and hear: R. Assi said in the name of R. Johanan [that] if orphans anticipated [the daughters] and sold the estate where it was small,¹⁰  their sale is valid.¹¹

R. Jeremiah sat before R. Abbahu, when he addressed to him [the following question].. Does one's widow,¹²  reduce [the value of] an estate?¹³  Do we assume [that] since she receives¹⁴  maintenance she [thereby] reduces [its value]; or perhaps, since she would receive none¹⁵  if she married [she is regarded as if] she has none even now?¹⁶  If you would find [some reason] for saying [that] since she would receive none if she married [she is regarded as if] she has none even now, [the question arises] whether his wife's daughter¹⁷  reduces [the value of] the estate?¹⁸  Do we say [that] since she would receive [her maintenance] even if she married, she does reduce [the value of the estate]; or, perhaps, since she would receive none if she died,¹⁹  she does not reduce [its value]? And if you would find [some ground] for saying that since she would receive nothing if she died, she does not reduce [its value], [the question arises] whether a creditor²⁰  reduces the [value of the] estate.²¹  Do we say that he reduces [its value] since he²²  would receive [his debt] even If he died,²³  or perhaps, he does not reduce [it] since the debt still requires collecting?²⁴  (Others²⁵  [report that he] put the questions in the reverse order:²⁶  Does a creditor reduce [the value of] the estate?

1. Since such an estate is considered 'small', the sons, according to our Mishnah, would receive nothing. Should, then, the daughters get the surplus over and above the amount required for their maintenance
2. At the time the father died.
3. Lit. 'became less', i.e., the estate had been damaged, or the cost of living had risen, so that the income does not suffice for the maintenance of the daughters.
4. As soon as the death of their father took place, the estate passed over into their possession. Hence, the daughters acquired their share for maintenance and the sons the residue. Any loss, therefore is to be shared by both the sons and the daughters, in equal proportions.
5. And was, consequently, reserved entirely for the maintenance of the daughters
6. Lit., 'became large', i.e., the estate was bringing in a higher income, or the cost of maintenance fell.
7. The sons.
8. Hence the sons should receive any surplus above the amount required for the daughter's maintenance.
9. Lit., 'removed from here.' And all the benefits of the appreciation goes to the daughters.
10. Lit., 'in possessions that were few.' Before the court heard the claim of the daughters.
11. And the sold property cannot be seized for the daughters maintenance. This proves that the estate remains in the possession of the sons. Hence, in case of appreciation, the surplus belongs to them.
12. Who is entitled to receive maintenance from the estate during her widowhood.
13. I.e., is the amount due to the widow for her maintenance deducted from the value of the estate which is thus reduced from a 'larger', to a 'smaller' estate, from which, if it just suffices for the maintenance of the daughters, the sons will receive nothing.
14. Lit., 'she has'.
15. Lit., 'she has not'. As soon as a widow re-marries she loses the right of receiving her maintenance from her dead husband's estate.
16. And the estate is to be given to the sons who would provide for the maintenance of the daughters and the widow until she re-marries.
17. A step-daughter of the deceased who, at the time of his marriage to her mother, had undertaken to maintain her for a period of years. Now that he died before that period elapsed it is the duty of his sons to provide for her maintenance out of the estate of their father.
18. Cf. p. 595. n. 3.
19. I.e., neither she nor her heirs.
20. of the deceased.
21. If it suffices only for the payment of the debt and the maintenance of the daughters.
22. I.e., his heirs.
23. And consequently the sons of the deceased debtor would receive nothing, (v. note 5).
24. And before collection the estate not only suffices for the maintenance the daughters but leaves also a surplus for the sons.
25. Lit., 'and there are'.
26. Lit., 'towards the other side'.

Does¹  his wife's daughter²  reduce [its value]? Does³  his widow⁴  reduce [its value]?) [In the case of claims of] his widow and [her] daughter,⁵  who is to have the preference? — He said to him: Go away to-day and come to-morrow. When he came, he said to him: Solve at least one [problem]. For R. Abba said in the name of R. Assi [that] the relationship between⁶  a widow and [her] daughter, in the case of a small estate, has been put [on the same basis] as that of the relationship between⁷  a daughter and brothers. As [in the case of] the relationship between a daughter and brothers, the daughter is maintained [out of the estate] while the brothers have to go begging at [people's] doors, so [in the case of] the relationship of a widow and [her] daughter, the widow is maintained, and the daughter may go begging at [people's] doors.⁸

ADMON SAID, 'AM I TO BE THE LOSER BECAUSE I AM A MALE' etc. What does he mean?⁹  — Abaye replied: He means this: 'AM I TO BE THE LOSER BECAUSE I AM A MALE and am capable of engaging in the study of the Torah?' Raba said to him: Now, then, would he who is engaged in the study of the Torah be entitled to heirship, [and he who is not engaged in the study of the Torah not be entitled to be heir?¹⁰  — But, said Raba, he means this: 'AM I, BECAUSE I AM A MALE and am entitled to be heir in [the case of] a large, estate, TO BE THE LOSER [of my rights] in [the case of] a small estate?'

MISHNAH. [IF A MAN] LEFT SONS AND DAUGHTERS, AND ONE WHOSE SEX IS UNCERTAIN,¹¹  THE MALES MAY, WHERE THE ESTATE IS LARGE,¹²  REFER¹³  HIM TO THE FEMALES.¹⁴  [IF] THE ESTATE, [HOWEVER], IS SMALL,¹⁵  THE FEMALES MAY REFER HIM TO THE MALES.¹⁶  IF A MAN SAID: SHOULD MY WIFE BEAR A MALE CHILD, HE SHALL RECEIVE A MANEH, [AND HIS WIFE] DID BEAR A MALE CHILD, HE RECEIVES A MANEH. [IF HE SAID: SHOULD MY WIFE BEAR] A FEMALE [SHE SHALL RECEIVE] TWO HUNDRED [ZUZ, AND] SHE BORE A FEMALE, SHE TAKES TWO HUNDRED [ZUZ]. [IF HE SAID]: SHOULD [SHE BARE] A MALE CHILD [HE SHALL RECEIVE] A MANEH [AND] IF A FEMALE SHE SHALL RECEIVE TWO HUNDRED [ZUZ], AND SHE GAVE BIRTH TO A MALE AND A FEMALE, THE MALE RECEIVES A MANEH [AND] THE FEMALE RECEIVES TWO HUNDRED ZUZ. [IF] SHE BORE A TUMTUM, HE¹⁷  RECEIVES NOTHING. IF, [HOWEVER], HE SAID: WHATEVER MY WIFE SHALL BEAR, SHALL RECEIVE [A CERTAIN PORTION]. HE¹⁷  RECEIVES [IT]. AND IF THERE IS NO [OTHER] HEIR BUT THIS ONE,¹⁷  HE INHERITS ALL [THE ESTATE].

GEMARA [How can it be said that the males] REFER HIM [to the females] and he [presumably] receives [maintenance] as a daughter. Seeing that in the latter clause it states: IF SHE BORE A TUMTUM, HE RECEIVES NOTHING! — Abaye replied: THEY REFER HIM [to the females] and he receives nothing. Raba, however, said: THEY REFER HIM and he does receive [maintenance]; and the latter clause [of our Mishnah]¹⁸  represents the view¹⁹  of Rabban Simeon b. Gamaliel. For we learnt:²⁰  [If an animal]²¹  gave birth to a tumtum or an androginos,²²  Rabban Simeon b. Gamaliel said that the sanctity does not extend to [either of] them.²³

An objection was raised: A tumtum inherits like a son and receives maintenance like a daughter. According to Raba²⁴  this statement may well be explained [as follows]: He inherits like a son in [the case of] a small estate,²⁵  and receives maintenance like a daughter [in the case of] a large estate;²⁶

1. If the answer to the first question is that a creditor does reduce the value of the estate, it may he argued that only he does it, since his debt may be collected even after his death.
2. Whose right to maintenance she cannot transmit to her heirs since it ceases with her death.
3. If it is answered that his wife's daughter reduces the value of the estate. It may he argued that this is so only in her case since she retains her rights to maintenance even after her marriage.
4. Who loses her right to maintenance as soon as she re-marries
5. both of whom claim maintenance, while the estate suffices only for one.
6. Lit., 'at', 'at the side of'.
7. Lit., 'at', 'at the side of'.
8. Keth. 43a.
9. What reason is there to assume that, as regards maintenance, a male should have any preference at all over a female?
10. Surely no son could be deprived of a share in his father's inheritance for the sole reason that he was not able to engage in the study of the Torah!
11. Heb., tumtum v. Glos.
12. In which case the sons are entitled to inherit it, while the daughters receive only their maintenance until they marry or become of age.
13. Lit., 'push'.
14. I.e., to receive maintenance only as a daughter.
15. And is, consequently, allotted entirely to the maintenance of the daughters.
16. And he would thus receive nothing.
17. The tumtum
18. According to which the tumtum receives nothing.
19. Lit., 'we arrive'.
20. Ter. 24b; cf. Tosaf. Yeb. 83b. s.v., [H]
21. Of which the male or female firstling was consecrated as a sacrifice before it was born.
22. [G], a hermaphrodite. having characteristics of both male and female.
23. Thus it has been proved that in the opinion of Rabban Simeon b. Gamaliel a tumtum is regarded as a distinct species which is neither male nor female. This view is voiced by the author of the latter clause of our Mishnah, according to whom a tumtum receives neither a share like a son nor maintenance like a daughter.
24. Who regards a tumtum not as a distinct species but as one of uncertain sex and that, accordingly, he is either male or female.
25. I.e., nothing: since the daughters may refuse him maintenance on the ground that he has no proof that he is a female.
26. He cannot claim the greater privilege of receiving a share like a son, because he has no proof that he is a male. He is entitled, however, to the lesser privilege of maintenance, since if he is not a male he is inevitably a female. Cf. p. 598. n. 8.