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Week 109 - Sunday - 23 December 2001

BAVA BATRA: CHAPTER 8: MISHNAH 1

Some inherit and bequeath, some inherit but do not bequeath, some bequeath but do not inherit, some neither inherit nor bequeath. These inherit and bequeath: father to sons, and sons to father; paternal brothers inherit and bequeath. A man and his mother, a husband his wife, and sisters' sons - inherit but do not bequeath. A woman bequeaths to her sons and to her husband; and maternal uncles - bequeath but they do not inherit. And brothers from the same mother do not inherit and do not bequeath.

Kehati

This and the following chapter deal with laws of inheritance. The Torah states, (Num. 27:8-11), "If a man should die and have no son, you shall transfer his inheritance to his daughter. And if he has no daughter, you shall give his inheritance to his brothers. And if he has no brothers, you shall give his inheritance to his father's brothers. And if his father has no brothers, you shall give his inheritance to his kinsman that is next to him in his family and he shall possess it." From this source, the present mishnah enumerates four categories of relatives in regard to the laws of inheritance.

Some inherit and bequeath – i.e., relatives able to inherit or bequeath from or to one another. The mishnah did not state simply, There are those who inherit from one another, to conform with the adjoining statement, some inherit but do not bequeath - although they inherit from certain relatives, they do not bequeath anything to them; some bequeath but do not inherit - some may bequeath to certain relatives, without inheriting from them; Some neither inherit nor bequeath - whilst others, although related, neither bequeath to nor inherit from one another.

These inherit and bequeath: father to sons - if the sons died childless, the father inherits their estate. This is deduced from, "And if he has no son, you shall transfer his inheritance to his daughter." (Num. 27:8) From the use of the verb "transfer" rather than "give" which is used in the other verses, the Sages deduced that here, actually someone else should succeed to the inheritance, i.e., the father, but where there are daughters, the inheritance is passed to them. Furthermore, if there is a daughter, the inheritance is transferred from the man's father so that she gets it instead, but if the deceased left brothers and no children, the father inherits, and not his brothers (Bava Batra 109a). Thus in such a case the father takes precedence over the deceased's brothers.

And sons to father - If the father died, his sons inherit him, as it states, "If a man should die and have no son ..." which implies that if he has sons, they inherit him. From this we see that the father and sons can inherit one another, as stated in the mishnah; paternal brothers - if a person died childless and fatherless, his paternal brothers - although they have different mothers - inherit him, as it states, "And if he has no daughter, you shall give his inheritance to his brothers." (Num. 27:9) Maternal brothers, however, do not inherit one another as we see later in the mishnah, for it states, "His kinsman that is next to him in his family he shall inherit it" (Num. 27:11), and only those related through the father constitute a "family." In each of these cases, they inherit and bequeath - as explained above.

A man his mother - A son inherits his mother. We deduce this from the verse, "And every daughter that inherits an inheritance of the tribes of the Children of Israel." (Num. 36:8) The use of the word "tribes" in the plural indicates that a daughter may inherit from two separate tribes. How so? If her deceased father and mother came from two different tribes, she inherits both. Since the Torah uses the single Hebrew word "of the tribes," it compares the father's tribe to that of the mother; and just as with the father's tribe sons take precedence over daughters, the same is true for the mother's tribe. The Torah refers here to a marriage of members of two different tribes, who left only a daughter, in which case she is their heir. But if there is also a son, he would inherit their estate.

A husband his wife - A husband inherits his wife, as it states, "You shall give his inheritance to his kinsman that is next to him in his family, and he shall inherit it." (Num. 27:11) - u'netatem et nahalato lish'ero. The Sages learned that "kinsman" - sh'er - refers to one's wife; hence the husband inherits from his wife. The four Hebrew words just quoted may be re-arranged by combining the letter vav of nahalato with the letter lamed of lish'ero, to form a new word, lo, now giving the reading, u'netatem et nahalat she'ro lo, which means "You shall give the inheritance of his kinsman (i.e., his wife) to him." There are those who hold that by Torah law a husband does not inherit his wife. According to them, although he does indeed inherit her, it is by Rabbinic law, and the reading in the verse is merely an asmakhta, an interpretation given to a verse to lend support to a law which is clearly Rabbinic in nature.

And sisters' sons - the sons of one's sister inherit from him when there are no closer relatives. For example, if a person died leaving no children, father, brothers, or sisters to inherit, and if his sister had been alive she would have inherited him, the sister's children inherit in her place. All in this group inherit - as we explained in each case, but do not bequeath - a son does not bequeath to his mother, for it states, "And every daughter that inherits an inheritance of the tribes of the Children of Israel." (Num. 36:8) From this our Sages learned that while she can inherit from two different tribes (as explained above), she cannot bequeath to two, but only to one, i.e., her father's tribe. Thus the mother cannot inherit her son. Nor does a husband bequeath to his wife, for it states, "He shall inherit her" (Num. 27:11), i.e., the husband inherits the wife, but she does not inherit from him. Sisters' sons do not bequeath to their maternal uncles, because their maternal uncle only inherits them through their mother, his sister; and their mother does not inherit them, as explained above, for a son does not bequeath to his mother.

A woman bequeaths to her sons and to her husband; and maternal uncles - bequeath to the woman's son; but - in all three cases they do not inherit from them - as explained above, so that this last statement is really superfluous. Some therefore explain that the first two statements, "a woman bequeaths to her sons and to her husband" teach us that the case of "a woman and her sons" is analogous to that of "a wife and her husband." Just as a husband only inherits his wife while he is alive (i.e., if he died first, his wife's inheritance does not pass through him to his heirs), so, too, does the estate of a son not pass on to the son's paternal brothers if he predeceases his mother. Instead, her father's heirs inherit from her (Tosafot; and see Tosefot Yom Tov). Accordingly, the Mishnah added the third statement by association.

And brothers from the same mother - who have different fathers do not inherit and do not bequeath - from or to one another, for the inheritance of each reverts to his father's relatives. The Gemara asks why the mishnah mentions "sons to the father" before "father to sons," for parents generally die before their children? Surely if a child dies in his parents' life, there is an element of Divine punishment, and the Mishnah does not generally begin with punishment. Furthermore, the Torah itself begins with the son inheriting from his father, as it states, "If a man should die and have no son." (Num. 27:8) The Gemara answers that the law of a father inheriting from his son is only implicit in the text, as we showed above in our explanation to the mishnah, and the Tanna of the mishnah preferred to begin with a law which was deduced rather than one explicitly stated in the Torah, as the exegesis was precious to him.

BAVA BATRA: CHAPTER 8: MISHNAH 2

The order of inheritance is as follows: "If a man should die and have no son, you shall transfer his inheritance to his daughter" (Num. 27:8) - a son precedes the daughter, and all the progeny of the son precede the daughter. A daughter precedes the brothers, the progeny of the daughter precede the brothers. Brothers precede the father's brothers, progeny of the brothers precede the father's brothers. This is the rule: Whoever takes precedence in inheritance, the progeny take precedence. And a father precedes all his progeny.

Kehati

The order of inheritance is as follows: "If a man should die and have no son, you shall transfer his inheritance to his daughter" - We learn from this verse that a son precedes the daughter - that if a person died leaving a son and a daughter, the son inherits from the father, not the daughter; and all the progeny of the son precede the daughter - if the son died during his father's lifetime and left children they inherit from their father's father, but their father's sister does not inherit.

A daughter precedes the brothers - of the deceased, the progeny of the daughter precede the brothers - as well as the father, but this mishnah refers to a case where the father is no longer alive (Tiferet Yisrael). Brothers precede the father's brothers - Brothers of the deceased take precedence over his father's brothers; and if there are sisters, the brothers take precedence over the sisters; progeny of the brothers precede the father's brothers - so, too, do sisters and their offspring take precedence over the father's brothers (Rashbam);

This is the rule: whoever takes precedence in inheritance, the progeny take precedence - And if he has no living offspring, their inheritance reverts to the father. For example, if Reuven dies, his sons Hanokh, Palu Hetzron and Karmi inherit him. If one of these sons died in Reuven's lifetime leaving behind a son or daughter, or a son's son or daughter, or a daughter's son or daughter, the latter inherits part of Reuven's estate through his or her father or grandfather, and acquires a share like one of Reuven's sons. If, however, Reuven has no sons or grandsons nor granddaughters, then Reuven's daughters inherit him. If Reuven has no daughters nor daughters' sons nor daughters' daughters and so on throughout the generations, then Reuven's father, Jacob, will inherit Reuven. If Jacob is not alive, then the sons of Jacob who are his brothers, Shimon, Levi and Yehudah, etc., will inherit Reuven. If Reuven's brothers are not alive, then his brother's sons inherit Reuven. If Reuven's brothers have no sons, or grandsons, then the brothers' daughters or their daughters' sons or daughters' daughters will inherit him, for in every case the male and his inheritors take precedence over a female. And if Reuven's brothers died childless, or if he never had a brother, then Reuven's sister Dinah, or her sons, or her sons' sons, or her daughters, or her daughters' daughters, throughout all the generations inherits him. And if Reuven had no sister or sister's offspring, his estate reverts to Isaac, his father's father, and if Isaac is no longer alive, it reverts to Esau, the son of Isaac, Reuven's paternal uncle. If Esau is no longer alive, then Reuven's estate reverts to Eliphaz, son of Esau, or to his sons or to his sons' sons or to his daughters, or to his daughters' daughters, throughout the generations. And if Reuven's father Jacob has no brothers nor brothers' offspring, then Reuven's estate reverts to his father's sister, or to her sons or to her sons' sons, or to her daughters, according to the order of precedence described above. If Reuven's father had neither brothers nor brothers' children, nor sisters nor sisters' children, Reuven's estate will revert to his paternal great grandfather, Abraham, and so on, all the way back to Adam, the first man (Bartenura), and a father precedes all his progeny - if the deceased (A) did not leave offspring, then his father (B) takes precedence over his sons (who are A's brothers); so, too, the paternal grandfather of the deceased takes precedence over his (A's) father's father's brothers, and so too for all generations does the father take precedence over his own sons, as we have explained above.

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