Babylonian Talmud: Tractate Baba Bathra

Folio 125a

What is the reason¹  [why he] does not [take a double portion if] money [was collected]? [Is it not] because their father did not bequeath that particular money? [In the case of] land also, their father, [surely], did not bequeath that land! Furthermore, you, O Master, have said, [that] the reason of the Palestinians is logical, for if the grandmother had sold [her estate] before [her death], her sale would have been valid.²  Following R. Nahman there is [this] difficulty: What is the reason¹  why he does not [take a double portion when] land [was collected]? [Is it not] because their father did not bequeath that land? [In the case of] money also, their father did not bequeath that money! Furthermore, surely, R. Nahman said in the name of Rabbah b. Abbuha: [If] orphans collected [a plot of] land for their father's debt³  the creditor⁴  may re-collect it from them!⁵  — He replied to him: There is no difficulty according to me, nor is there any difficulty according to R. Nahman. We were stating the reason of the Palestinians,⁶  but we ourselves⁷  do not hold [this] opinion.⁸

What [was the story of the] grandmother? [Once] a certain [person] said to them:⁹

1. Lit., 'what is the difference?'
2. V. infra 125b. This shows that land, though regarded as pledged, is not considered to be in possession of the creditor since the debtor can dispose of it and meet his liability in another manner; how, then, could Rabbah state that the firstborn if land was collected, receives a double portion?
3. That was owing to him.
4. To whom their father owed money.
5. Although they received that land after the death of their father, it is regarded as having itself been 'in the father's possession, since it had been obtained through the money (debt) bequeathed to them by their father. In the case of the birthright also, since the land was obtained through the debt that was bequeathed by their father, it should be regarded as having been in his possession, and the first-born should take a double portion; how, then, could R. Nahman say that if land was collected for a debt, the firstborn does not receive a double portion?
6. Who hold that a firstborn takes a double portion in a loan, and this gave rise to the differences of opinion between Rabbah and R. Nahman.
7. Lit., 'and to us'.
8. But share the opinion of Rab and Samuel that the right of primogeniture does not apply to a loan and the whole question, whether the payment was made in money or land, does not arise.
9. His executors.

'My estate [is bequeathed] to [my] grandmother, and after [her demise] to my heirs.'¹  He had a married daughter [who] died during the lifetime of her husband and the lifetime of her grandmother. After the grandmother died, the husband came to claim [the estate].²  R. Huna said: 'To my heirs',³  implies, 'even to the heirs of my heirs';⁴  and R. Anan said: 'To my heirs', implies, 'but not to the heirs of my heirs'.

[A message] was sent from Palestine:⁵  The law is in accordance with [the statement] of R. Anan; but not because of his reason. 'The law is in accordance with [the statement] of R. Anan' [in] that the husband is not to be the heir. 'But not because of his reason', for, whereas R. Anan holds the opinion [that] even though his daughter had a son he would not be heir,⁶  [the law] is not [so]; for had his daughter had a son he would certainly have been heir.⁷  The reason why the husband is not heir is this: Because [the estate] was⁸  prospective [property],⁹  and the husband is not [entitled] to receive of prospective [property] as of [property which is already] in the possession [of his wife at the time of her death].

Does this¹⁰  imply that R. Huna¹¹  holds the opinion that a husband [is entitled] to receive of the prospective [property of his wife] as of that which is [already] in [her] possession [at the time of her death] — R. Eleazar said: This subject¹²  began with the great and ended with the small.¹³  [R. Huna's reason is this:] Whosoever says, '[Another person shall be my heir] after you,'¹⁴  is [regarded] as one who said, '[That person shall be my heir] from now'.¹⁵

Rabbah said: The reason [given] by the Palestinians¹⁶  is logical. For had the grandmother sold [the estate] prior [to her demise] the sale would have been legally valid.¹⁷

R. Papa said: The law is that a husband does not receive of the 'prospective'¹⁸  [estate] of his wife as of that which is in her possession';¹⁸  and the firstborn son does not receive of a prospective [estate of his father] as of that which is in [his father's] 'possession'. The firstborn son, [furthermore,] does not receive a double portion in a loan [owing to his father], whether [the heirs] had collected [in payment] land or whether they had collected money;

1. I.e., on the denise of the grandmother, the estate shall revert back to his own heirs (his own sons, daughters, etc.) and shall not be inherited by the woman's heirs (her sons etc.).
2. Since his wife, if she had been alive, would have inherited that estate, he, as her husband and heir, claimed his right to that estate.
3. The expression used by the testator.
4. Hence the husband is entitled to the inheritance of the estate.
5. Lit., 'from there'.
6. Since he excludes the heirs of the heirs.
7. The son of a daughter (in the absence of sons and their lineal descendants), is entitled to be heir to his grandfather and is, therefore, included in the expression 'my heirs'.
8. When his wife died.
9. At that time it was still in the possession of the grandmother.
10. The statement that the reason why the husband was not granted the right of heirship in the estate of his wife's grandmother is because he is not entitled to inherit any 'prospective property' or his wife.
11. Who granted the husband's claim.
12. R. Huna's decision.
13. R. Eleazar classes R. Huna (who gave the verdict) among the great, and himself (who explained it) among the small.
14. As here, where the granddaughter has nominated heir after the grandmother.
15. The granddaughter, in the case cited, consequently came into the possession of the estate during her lifetime, the grandmother only enjoying the right of usufruct. Hence, it was not 'prospective' property' that R. Huna had granted the husband.
16. Who treated the estate as prospective property.
17. This proves that the grandmother was nor only entitled to usufruct but also to the full possession of the estate. Had she sold it, the granddaughter would has e received nothing. Hence, as regards the granddaughter, the estate was only prospective, and her husband, therefore, was not entitled to claim it.
18. The terms have been fully explained in the Gemara and notes supran.