Commentary for Bava Batra 9:2
הִנִּיחַ בָּנִים וּבָנוֹת וְטֻמְטוּם, בִּזְמַן שֶׁהַנְּכָסִים מְרֻבִּים, הַזְּכָרִים דּוֹחִין אוֹתוֹ אֵצֶל נְקֵבוֹת. נְכָסִים מֻעָטִין, הַנְּקֵבוֹת דּוֹחוֹת אוֹתוֹ אֵצֶל זְכָרִים. הָאוֹמֵר אִם תֵּלֵד אִשְׁתִּי זָכָר יִטֹּל מָנֶה, יָלְדָה זָכָר, נוֹטֵל מָנֶה. נְקֵבָה מָאתַיִם, יָלְדָה נְקֵבָה, נוֹטֶלֶת מָאתָיִם. אִם זָכָר מָנֶה אִם נְקֵבָה מָאתַיִם, וְיָלְדָה זָכָר וּנְקֵבָה, זָכָר נוֹטֵל מָנֶה וְהַנְּקֵבָה נוֹטֶלֶת מָאתָיִם. יָלְדָה טֻמְטוּם, אֵינוֹ נוֹטֵל. אִם אָמַר כָּל מַה שֶּׁתֵּלֵד אִשְׁתִּי יִטֹּל, הֲרֵי זֶה יִטֹּל. וְאִם אֵין שָׁם יוֹרֵשׁ אֶלָּא הוּא, יוֹרֵשׁ אֶת הַכֹּל:
If one left sons and daughters and a tumtum [one whose gender, male or female, is in doubt], the males "push him off" to the females, [saying to him: "Prove that you are a male and share" (with us in the inheritance)]. Where there is scant property, the females "push him off" to the males, [saying to him: "Prove that you are a female and be fed with us."] If one says: "If my wife bears a male, let him get one hundred," if she bore a male, he gets one hundred. [And even though we rule that "if one endows a fetus, it does not acquire," here we are speaking of a deathbed gift to one's son, a man being (more) favorably disposed towards his son (than to others)]. (If one says: "If my wife bears a female, (let her get) two hundred," if she bore a female, she gets two hundred. (If she said:) "If a male, one hundred; if a female, two hundred," if she bore a male and a female [twins], the male gets one hundred and the female, two hundred. If she bore a tumtum, it does not get anything. [This Mishnah is rejected, and the halachah is that a tumtum gets the least (amount) of the two.] If he said: "Whatever my wife bears, let him get…" (and it turns out to be a tumtum), it gets. And if there is no other heir, it inherits everything. [We might think that a tumtum is a distinct type of being and not fit to inherit; we are, therefore, apprised otherwise.]
Bartenura on Mishnah Bava Batra
English Explanation of Mishnah Bava Batra
If a man said, “If my wife shall bear a male he shall be given 100 zuz”, and she had a male, he receives 100 zuz. [If he said, “If my wife shall bear a] female she shall be given 200 zuz”, and she had a female, she receives 200 zuz. [If he said, “If may wife shall bear a] male he shall be given 100 zuz and if a female 200 zuz” and she had a male and a female, the male receives 100 zuz and the female 200 zuz. If she had one of doubtful gender, he does not take. But if he said, “Whatsoever my wife shall bear shall be given [such an amount], he receives.
If he [the one of doubtful gender] was the only heir, he inherits everything.
Mishnah two deals with the division of the inheritance when one of the children is not discernibly male or female and other laws concerning such a child.
This mishnah discusses the rights of a “tumtum” which is the Hebrew term for a child who does not have sexual signs of being a male or female. If there is a large inheritance, and therefore the sons will take their part, the sons can tell the “tumtum” that he is not a son and therefore he can only receive maintenance with the other daughters. If, however, there is small estate, and it is not sufficient to support all of the children, the daughters can tell him that he must go begging with the other sons. These two laws are based on the principle, common to many Rabbinic laws, that the burden of proof is on the plaintiff. In order for the “tumtum” to take part of the inheritance he must prove that he is male, which he cannot. In order for him to receive maintenance when the estate is small, he must prove that he is female, which he cannot.
Section two deals with a father who makes a promise to give his child a present when the child is born and bases the size of the present on the gender of the child. Sections 2, 2a and 2b are straightforward and need no explanation. According to section 2c if, in any of the aforementioned cases, the woman were to bear a “tumtum” the child would not be able to claim the present. Since the present was based on the child’s gender and the child cannot prove a gender, the child cannot make a claim on the gift.
If, however, the father had said that he wished to give a gift to anything that the wife had, then he has not based the gift on the child’s gender. In such a case even a tumtum would receive the gift. Finally the mishnah states that if the “tumtum” were the only inheritor, s/he would inherit.