Babylonian Talmud

Rodkinson 1918 — source 14, scan section 41

taught 🙂 R. Na'hman said : If one bequeaths to an embryo, title is not given ; but if he said, " after he is born," title is given. R. Huna, however, maintains that even then title is not given. But R. Shesheth is of the opinion that in either case title is given. And he added : I deduce my statement from the follow- ing Boraitha : " If a proselyte supposed to be childless dies, and Israelites have robbed his estate, and thereafter they hear that he has a son, or that his wife is pregnant, they are obliged to return it. If, however, they have returned it, and thereafter they hear that the son is dead, or that his wife has had a mis- carriage, and they again take the estate, he who made a hazakah in the second instance has acquired title, but he who made the same in the first instance has not." Now, if it be remembered that an embryo does not acquire title, why should title not be given to them who made a hazakah in the first instance? Said Abayi: There is a difference with an inheritance which came of itself: In such a case the embryo acquires title. Rabha, however, said: Even in case an inheritance came by itself, the embryo does not acquire title; and the reason why title is not given to them who made a hazakah in the first instance is be- cause they were still uncertain whether the property taken would remain with them, as there was still a doubt whether children were left. But in the second instance they were sure of their ground. Come and hear another objection : " A child of one day inherits and bequeaths (e.g., if his father dies when he was even one day old, he inherits from his father ; and if at birth the estate of his deceased father came to him, and he dies when he was TRACT BABA BATHRA (LAST GATE). 317 one day old, his relatives inherit from him). We see, then — only when he was one day old, but not when in embryo. This was explained by Rabh Shesheth : He inherits the estate of his mother, to bequeath to his brothers on his father's side. And this can be only when he was alive one day after his mother; but not when he was in embryo, as he died before his mother. And a son does not inherit from his mother, when once in his grave, so that his brothers on his father's side could inherit from him. Shall we assume that in case the mother dies while preg- nant the embryo dies first? Perhaps she dies first? There happened such a case, and the embryo moved convulsively thrice. Said Mar b. R. Ashi : Such a movement was without any life, such as the movement of the tail of a lizard. Mar b. R. Joseph in the name of Rabha said: The cited Boraitha means to say that a child of one day diminishes the share of a first-born . E.g., a first-born takes a double share — i.e., twice as much as each of his other brothers. But if there were added a male child of one day, the estate must be divided into five parts, if there are four brothers, of which the first-born takes a double share. And if this child dies afterwards, his share is to be divided equally among the four brothers. This is only when he was old one day, but not when an embryo; because [it is written, Deut. xxi. 15], " and they bear him children." As the same said also on the same authority: A son who was born after the death of his father does not diminish the share of the first-born, as it reads in the verse just cited "bear him"; but when born after his death, it was not born to him. All that was said here was taught in the city of Sura. In Pumbeditha, however, it was taught as follows: Mar b. R. Joseph said in the name of Rabha : A first-born who was born after the death of his father does not take a double share. As it is written [ibid., 17] : " Shall he acknowledge," and when he is dead he cannot acknowledge. The Halakha prevails in accordance wdth all the versions said by Mar b. R. Joseph in the name of Rabha. R. Itz'hak in the name of R. Johanan said: He who be- queaths to an embryo, title is not acquired. And should you object to this statement from our Mishna, which states: " If one bequeaths a mana to the embryo, he takes it after he is born," 3i8 THE BABYLONIAN TALMUD. I may tell you that this is said only of a father, whose mind is near to his son; but it cannot be done by a stranger. Said Samuel to R. Hana of Bagdad : You may bring to me ten per- sons, and I will teach in their presence that title is given if one bequeaths to an embryo. The Halakha, however, prevails that title is not given. There was one who said to his wife: I bequeath my estate to the children who shall be born of you by me. And his elder son came and said: What becomes of me? And the father answered : You will take a share as one of the brothers. Now, the children which are to be born can certainly not ac- quire any title; but the question is, does the elder son, when he came to share with his brothers born thereafter, take a double share, as his father bequeathed to him a part of his estate when his brothers w^re not yet in existence? Or does he share with them equally? According to R. Abbin, R. Miicha, and R. Jeremiah, he is entitled to a double share ; and according to R. Abuhu, Hanina b. Papi, and R. Itz'hak of Naf'ha, he is not. Said R. Abuhu to R. Jeremiah : With whom should the Halakha prevail — with us or with you? And he answered: Certainly with us, as we are older than you; and not with you, who are still young scholars. And R. Abuhu rejoined: Does this depend upon age? It depends upon rea- son, and our reason is better than yours. And what is it? questioned R. Jeremiah again. And he answered : Go to R. Abbin, and ask him, as I have already explained to him the reason at the college ; and he shook his head in sign of assent. He went to him, and he told him : Because this case is similar to that of one who says : " You and this ass shall acquire title to this article," would title be given to him? Is this not to ex- plain: You shall acquire title as the ass? The same is the case if one says: You shall share with the children, which are not yet in existence even in pregnancy. Hence title is not acquired in either case. It was taught: If one says: "Acquire title to this as the ass," certainly title is not given; but if he says: " Acquire title, you and the ass," according to R. Na'hman title is given to a half. And R. Huna said: This man said noth- ing. R. Shesheth, however, said : He has acquired title to the whole of it. Said R. Mordecai to R. Ashi : R. Ivia raised an objection from a Mishna in Tract Kiduchin : It happened with TRACT BABA BATHRA (LAST GATE). 319 five women, among them two sisters, that one presented to them a basket with dry figs, saying: You are all betrothed to me with this basket. And one of the women accepted the