Bava Metzia 39b (לט:) — the Talmud in English

And even if he grew up

the minor after this person had already sat on the ground, and then held it for another three years in his presence, this is not presumptive ownership.

This detail too is demonstrated by Rav Huna’s statement, for if not, how could they appoint a gentile over the land of a minor? There is surely reason for concern that it will remain in his possession once he comes of age, and he will claim: “You sold it to me after you came of age, and I consumed its produce for the three years of presumptive ownership

.” And Rava added and said:

And we said this

that they do not appoint a relative over the property of a minor

except in the case of a paternal brother

a brother on the father’s side who seeks to take possession of the minor’s property, land that had been presumed to belong to his father until his death

; but in the case of a maternal brother

a brother on the mother’s side

there is no concern

about appointing him over land that had been presumed to belong to the minor’s father before his death, because he cannot claim inheritance rights in the land, as he is not a relative of the father.

b.

And with regard to a paternal brother as well, we said this

that they do not appoint a relative

only with regard to land

real property

; but with regard to houses

residential buildings

there is no concern,

because with regard to a house he cannot claim that he came to take his share, since the neighbors know that he came to take the minor’s share.

c.

And with regard to land as well, we said this

that they do not appoint the relative

only when no division document was prepared

when no deed of division was drawn up upon the father’s death

; but when a division document was prepared, it has public knowledge,

the division recorded in a deed is known, and everyone knows that they came to take the minor’s share, and not his brother’s property.

However, the Gemara rejects Rava’s words:

That is not so

as Rava said! Rather:

It makes no difference whether he is a paternal brother or whether he is a maternal brother

they do not appoint him, even though this land came to the minor from his father, and this person cannot claim that he came to take his share, since he is not the father’s relative. Nevertheless, perhaps he will claim that the land belonged to his mother, and that his father, who had possession of it, had done so because of his right to consume the produce of property belonging to his wife. But once he died, the land reverted to his mother, and I inherited it.

And similarly,

it makes no difference whether it is land or whether it is houses, whether a division document was prepared or whether a division document was not prepared; we do not appoint him

we do not appoint him over the property.

There was an incident involving

a certain elderly woman who had three daughters,

of whom

she and one daughter were taken captive;

and

of the other two daughters, one died and left a young son.

[There was an incident involving an elderly woman who had three daughters. She and one of her daughters were taken captive; of the two remaining daughters, one died and left a minor son, while the third was present here.]

Abaye said: What shall we do

with the elderly woman’s property

? Shall we place the property

of the elderly woman

in the hands of the sister

appoint the sister who is present here over the property, in accordance with the view of Rabban Shimon ben Gamliel, who says that one appoints a relative over the property of a captive? This is impossible, since there is reason for concern

perhaps

the elderly woman died

perhaps the elderly woman died while the daughter who was taken captive is still alive, in which case the minor inherits one-third of her property [together with his two aunts]; or perhaps the daughter who was taken captive with her also died, in which case he inherits together with his present aunt [and he consequently has a total of half of the elderly woman’s property]]

and

therefore

one does not appoint a relative over the property of a minor.

You might say:

Let us place the property in the hands of the minor

[let us place the property in the minor’s hands]?

This, too, is impossible, because

perhaps the elderly woman did not die

[perhaps the elderly woman is still alive], and the property belongs to her;

and one does not place a minor on the property of a captive.

Abaye said, therefore

Abaye said: Therefore,

this is what we shall do:

Perhaps you will say:

Let us place his property in the hands of the minor

let us place the property in the hands of the minor

?

This too is impossible, because

perhaps the elderly woman did not die

perhaps the elderly woman did not die

, and the property belongs to her ; and one does not appoint a minor over the property of a captive.

[since in any event we appoint a guardian for half of the property, he should also be placed over the second half].

Abaye said: Therefore

this is what we shall do:

We shall give half to the sister

this is what we shall do:

over half of the property we appoint the sister who is present here, since in either event she may take possession: If both the elderly woman and the daughter died, she inherits half of the elderly woman’s property; and if neither died, or if only one of them died, we appoint a relative over the property of a captive.

And

if, with regard to

the other half

the second half of the property, there is concern that it belongs to the minor, since perhaps both the elderly woman and the daughter died,

we shall appoint a guardian for the minor

we appoint a guardian for the minor

.

[the additional third], whose ownership is uncertain—perhaps it belongs to the captive daughter because she did not die, or perhaps she, too, died, in which case the third is divided between the minor and the surviving daughter—we shall handle it as follows:

We give one-sixth to the sister,

[we place the present sister on one-sixth of the entire property, which is half of the third], because in either event she may take possession: If her sister died, the share belongs to her; and if she did not die, she is the relative fit to inherit, whom we place on the property of a captive.

And

Rava said: Since we appoint a guardian for one half, we appoint a guardian for the other half as well

since in any event we appoint a guardian for half of the property, he should also be appointed over the second half of the property.

[the additional sixth, which is half of the remaining third], whose ownership is uncertain because perhaps it belongs to the minor, and one does not place a relative on a minor’s property,

Eventually they heard that the elderly woman had died

after some time they heard that the elderly woman had died; they had not heard anything about the daughter who had been taken captive with her.

Abaye said,

this is what we shall do:

One third shall be given to the sister

one-third of the elderly woman’s property should be given to the sister who is present, since it belongs to her, as she inherits one-third of the elderly woman’s property.

And one

third shall be given to the minor

one-third of the property is given to the minor through a guardian, since one-third of the elderly woman’s property belongs to him.

And the other third

the additional third, whose ownership is uncertain — whether it belongs to the daughter who was taken captive, because she did not die, or whether she too died, in which case the third is divided between the minor and the daughter who is present — this is what we shall do with it:

We shall give a sixth to the sister

we appoint the sister who is present to take the produce of the entire property, which is half of the third, since in either event she may take possession: If her sister died, the property belongs to her; and if she did not die, she is the relative fit to inherit it, whom they appoint over the property of a captive.

And if, with regard to the other sixth the additional sixth, which is half of the remaining third, there is uncertainty that it belongs to the minor, and one does not appoint a relative over the property of a minor, we shall appoint a guardian for the minor we appoint a guardian for him on behalf of the minor. Rava said: Since we appoint a guardian for one sixth, we also appoint a guardian for the other sixth, in accordance with Rava’s reasoning above. There was an incident involving Mari bar Isak, to whom a brother came from Bei Ḥozai a man came to him from a place called “Bei Ḥozai” and claimed that he was Mari bar Isak’s brother. He said to him that man said to Mari bar Isak: Divide it with me give me half of our father’s inheritance. He said to him,

Mari bar Isak to that man:

I do not know you,

I do not recognize whether you are my brother.

He came

that man came

before Rav Hisda

to ask about his case?

Rav Hisda said to him,

to that certain man:

You have spoken well to him

Mari has spoken well to you. That is, there is no deceit in his words, because it is indeed possible that he does not know whether you are his brother or not, since when you left him you did not yet have a beard, whereas now you do—

And similarly

as it is stated

when Joseph’s brothers came to Egypt and stood before Joseph: “

Joseph recognized his brothers, but they did not recognize him,”

this teaches that Joseph left

Jacob’s household

without a beard,

for he was seventeen years old,

and came

that is, when Joseph’s brothers came to him, he was

with a beard;

and therefore they did not know that he was Joseph, whereas Joseph recognized his brothers, who had beards when he left them.

Therefore

Rav Hisda said to him,

to that man:

Go and bring witnesses that you are his brother

go and bring witnesses that you are his brother.

That man said to Rav Hisda,

to Rav Hisda:

I have witnesses, but they are afraid of him because he is a violent man

I have witnesses who can testify to our brotherhood, but unfortunately they are afraid to testify against Mari, because he is a violent man.

When Rav Hisda heard this,

he said to him,

Rav Hisda

to him

to Mari: If so,

you go and bring

those

witnesses

whom the brother brought, so that they will testify

that he is not your brother

you go and bring those witnesses whom your brother says can testify to your brotherhood; go and bring them so that they will testify as you do—or bring other witnesses.

Mari said to him,

to Rav Hisda: Surely

is this the law?

But we have established:

The burden of proof rests upon the claimant,

and by law, this man who seeks to take property from me should bring proof that he is my brother. Why are you placing the burden of proof upon me?!

Rav Hisda said to him,

to Mari:

This is how I judge you and all violent men like you

This is how I judge you and all violent men like you!

Mari said to him,

to Rav Hisda—and if I am violent and control the witnesses whom my brother brought—

ultimately

will

the witnesses come and not testify

as I do? Will the witnesses not come to testify as I do because they are afraid of me? If so, what benefit is there in bringing witnesses who will testify as I do?!

Rav Hisda said to him:

I am not concerned about this, because

they will not do two things

they will not do both: refrain from testifying for the one who asks them to testify on his behalf, and also testify in the opposite direction in favor of the opposing litigant.

Ultimately, witnesses came that he was his brother

after some time, witnesses came and testified to that man’s brotherhood, and the ruling was issued that he should receive half the assets.

His brother said to Rav Hisda,

Mari’s brother said to Rav Hisda:

Let him also divide with me the vineyards and orchards that he planted

let my brother give me as well half the vineyards and groves of trees that he planted in the field jointly owned by the two of us.

Rav Hisda said to Mari,

to Mari:

Your brother has spoken well to you,

your brother,

for

this

we learned

in Bava Batra:

If

the father left

grown sons and young sons, and the grown sons enhanced the assets, the enhancement is shared equally

the enhancement is divided between the grown sons who worked and the young sons who did not work.