Bava Batra 140b (קמ:) — the Talmud in English

What is the halakha regarding his wife’s daughter: does she diminish the estate?

With regard to his wife’s daughter, the obligation is weaker than that of a creditor, since if she dies, the obligation lapses.

And if nevertheless we say that she does diminish the estate, since even if she marries she continues to receive support, the question still remains:

What is the halakha regarding his widow: does she diminish the estate?

With regard to his widow, the obligation is weaker than that of his wife’s daughter, since if his widow marries another man, the obligation lapses. Therefore, the Gemara raises the question with regard to her.

This concludes the words of the one who raised the question from the opposite perspective.

And now the Gemara brings another question that Rabbi Yirmeya raised:

His widow and his daughter—

which of them has priority?

When there are sufficient assets to support only one of them, which of them has priority? Is a person’s disposition closer to his daughter, and therefore she receives the assets, or does he take greater care of his widow, so that she has priority over his daughter?

He said to him,

Rabbi Abbahu:

At least resolve one of them;

at least, it is possible to resolve the latter question:

For Rabbi Abba said that Rav Asi said: They placed a widow in relation to a daughter—

the Sages instituted that when there is a widow and a daughter, and there are sufficient assets to support only one of them—

like a daughter in relation to brothers when the assets are few.

Just as, when a daughter is present with brothers, the daughter is supported and the brothers must beg from door to door,

as in a case where there is a daughter and brothers and the assets are few, the Sages instituted that the daughter receives the assets, since a daughter has priority over the brothers;

so too, when a widow is present with a daughter,

when there is a widow and a daughter,

the widow is supported, and the daughter must beg from door to door.

Thus the question raised above is resolved: the widow has priority over the daughter.

We learned in the Mishna:

Admon says: Just because I am male, have I lost out!?

From Admon’s statement it is evident that there is an advantage to being male, because of which he should have been given priority. Therefore, the Gemara asks:

What is he saying!?

To what advantage was Admon referring?

Abaye said: This is what he is saying:

this was his intention:

Just because I am male, and fit to engage in Torah study, have I lost out!?

A male is obligated in the mitzva of Torah study, whereas a female is not; therefore, sons should be given priority over daughters with regard to support.

Rava said to him: If so, is it only one who engages in Torah study who inherits, whereas one who does not engage in Torah study does not inherit!?

It follows from your words that one who engages in Torah study deserves to inherit more than one who does not engage in Torah study, and that when there are two sons, only the one who engages in Torah study inherits!?

Rather, Rava said: This is what he is saying:

this is Admon’s intention:

Just because I am male, and fit to inherit when the assets are substantial,

since a male inherits when the assets are substantial, whereas a female does not inherit at all, a male therefore has a greater claim to the assets than the daughters—so

have I lost out when the assets are few!?

Rather, the sons should be given priority, and certainly not the daughters. Therefore, he disputes the institution concerning few assets, and holds that all of them should be supported together.

Mishna:

If one dies and

leaves sons, daughters, and a tumtum,

who is of uncertain sex, male or female, and therefore receives the lesser side of the doubt,

when the assets are substantial,

when the sons have the advantage, since they inherit all the assets, while the daughters receive only support, then

the males push him away

the tumtum

to the females,

to the daughters, so that he receives support like them and no share of the inheritance.

But when the father left

few assets,

when the daughters receive the assets for their support and the sons must beg from door to door, as explained in the previous Mishna, and the females have the advantage, therefore

the females push him away

the tumtum

to the males,

to the sons, and he receives nothing.

If one says: If my wife gives birth to a male, he shall take one hundred dinars.

If one assigns a portion of his assets to the fetus in his wife’s womb, doing so through an act of acquisition or merely by a declaration, and he dies after making the declaration, there is now a mitzva to fulfill the words of the deceased.

If she gives birth to a male, he shall take one hundred dinars.

His statement takes effect, and if it is ultimately determined that the fetus is male, he receives one hundred zuz. There is no problem here of the inability to transfer ownership to a fetus, as will be explained below.

And similarly, if he said:

If she is female,

if my wife gives birth to a female, she shall take

two hundred,

he transfers two hundred zuz to her now; therefore, if she indeed

gives birth to a female, she takes

two hundred,

as he transferred to her.

In both of these cases, if she gives birth to what he did not specify—for example, if he said “male” and she gives birth to a female—she receives nothing, since his intention was only for a male, and likewise in the reverse case. This is the novel point of the Mishna.

But if he said,

If male, one hundred; if female, two hundred,

here he revealed that he wishes to transfer ownership to the fetus in every case, whether it is male or female.

And

therefore, if she

gives birth to a male or a female [namely, a male or a female],

that is, a male or a female],

the male takes one hundred, and the female takes two hundred.

But if she gives birth to twins, they receive nothing, since he did not have twins in mind.

If she gives birth to a tumtum,

whose sex is unknown,

he does not take

anything. [

This apparently contradicts the beginning of the Mishna, which indicates that a tumtum receives, due to the doubt, the lesser amount. If so, here too he should receive at least one hundred, like a male. This will be explained below in the Gemara.]

But,

if he said: Whatever my wife gives birth to shall take it!

Here he does not specify what she will give birth to; rather, he intends to transfer ownership to whoever is born. Therefore,

he shall take it,

even if she gives birth to a tumtum.

And now the Mishna returns to the first law, that a tumtum receives the lesser side with regard to inheritance and support.

If he is the only heir,

if there are no sons or daughters, but only a tumtum, then

he inherits everything,

since ultimately he is his son, even though it is not known which sex he is.

Gemara:

We learned in the first clause of the Mishna: If there are sons, daughters, and a tumtum,

they push him away

to the females.

The Gemara wonders:

And

when

he receives like a daughter,

is the law that the sons do not give him the portion of a son, but he receives like a daughter, due to the uncertainty?

But it is taught in the latter clause,

as we learned in the latter clause: If he said that a male shall receive one hundred and a female two hundred,

if she gives birth to a tumtum, he does not take!

This proves that a tumtum is not one whose sex is uncertain, male or female; rather, it is a distinct new creature, and therefore it has neither the status of a son nor that of a daughter. If so, it is difficult: Why does he receive anything in the first clause?

Abaye said: They push him away, and he receives nothing.

The Mishna means that the sons push him away to the daughters, but the daughters likewise push him back to the sons, and he receives nothing.

And Rava said:

The intention of the first clause is to say:

They push him away, and he receives something.

As the questioner understood.

And the latter clause comes

according

to the

view of

Rabban Shimon ben Gamliel,

who holds that a tumtum is a distinct creature in its own right, and not one whose sex is uncertain, male or female. Therefore, a tumtum receives nothing at all.

As it is taught in a baraita: If she gives birth to a tumtum or an androgynos,

this concerns an animal that was pregnant, and one consecrated the fetus, saying that if it gives birth to a male, it will be a burnt-offering, and if it gives birth to a female, it will be a peace-offering, but it gave birth to a tumtum or an androgynos [which has male signs and female signs].

Rabban Shimon ben Gamliel says: Sanctity does not take effect upon them!

The offspring is not consecrated at all, since it is neither male nor female, but rather a distinct creature in its own right.

And the latter clause follows his opinion.

The Gemara raises an objection against Abaye, who interprets the tumtum in the Mishna as receiving nothing.

Meytivi,

from a baraita, in which we learned that there is a case where

a tumtum inherits like a son, and

there is a case where he is

supported like a daughter.

Granted, according to Rava,

who holds that according to the Mishna a tumtum receives like a daughter, it can properly be established that what the baraita first states—“a tumtum inherits like a son”—refers to

assets that are few,

where the daughters have the advantage, receiving support while the sons receive nothing. This means that his status is like that of sons with regard to inheritance: in the case of few assets, he does not inherit, just as the sons do not inherit there. And what the baraita subsequently states,

and is supported like a daughter,

that the tumtum receives support like a daughter, can be established as referring to

assets that are substantial,

when the sons have the advantage; therefore, he receives only support, like a daughter.