פירוש על בבא בתרא 9:14

מי שמת. שהנכסים מרובים – in order that the sons will be supported and the daughters until they become adults (i.e., the age of twelve and one-half years – or until they are married, after which the balance of the estate goes to the sons).

Introduction The ninth chapter of Bava Batra continues to deal with the laws of inheritance, the subject discussed in chapter eight. The first mishnah of the chapter deals with the division of the inheritance between sons and daughters.

שהנכסים מועטים – and they don’t have a measure like this.

If a man died and left sons and daughters, and the property was great, the sons inherit and the daughters receive maintenance. But if the property was small the daughters receive maintenance and the sons go begging at people’s doors. Admon says: “The son may say, ‘Must I suffer a loss because I am a male’”. Rabban Gamaliel says: “I approve of Admon’s opinion.” As we have learned in several mishnayoth in the previous chapter, when a man dies and he has sons who survive him, the sons are the sole inheritors of his property. However, the surviving daughters have a right to continue to receive maintenance (food, clothing, shelter and a dowry) from his estate until they reach majority age and are married. Our mishnah teaches that if the property was sufficient for both an inheritance and for the maintenance of the daughters, then the sons inherit and the daughters receive maintenance. If, however, there was not enough property, the daughters maintenance takes precedence over the sons inheritance. In such a case the sons will have to beg at people’s doors. Admon disagrees and says that the son may claim that he should not lose out just because he is male. Rabban Gamaliel agrees with Admon.

בשביל שאני זכר הפסדתי – in astonishment. Burt rather, I will not lose out and all of us will be supported together. But the Halakha is not according to Admon. The put the widow with the daughter when the property is small, like a daughter with the brothers. Just as the daughter is with the brothers, the daughter is supported whereas the sons go begging at the doors. Even the widow is with the daughter. The widow receives support and the daughter goes begging at the doors.

Questions for Further Thought:
• Why does the anonymous opinion hold that the daughters receive support from their dead father’s estate while the sons must beg, at least in a case where there is insufficient funds for all? Why not vice versa?

וטומטום – doubtfully a male and doubtfully a female.

If a man left sons and daughters and one that was of doubtful gender, if the property was great the males may push him (the one of doubtful onto the females; if the property was small the females may thrust him onto the males.
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.

הזכרין דוחין אותו אצל הנקבות – for they say to him, bring proof that you are a male and take [your portion].

הנקבות דוחים אותו אצל הזכרים – as they say to hm, bring proof that you are a female and you will be supported with us.

ילדה זכר נוטל מנה – and even though we hold that one who makes an assignment to a fetus did not acquire it, here we are dealing with someone on his deathbed who made an assignment to his son, he acquired it, for the temperament of a person is closest with his son.

ילדה זכר ונקבה – twins together.

ילדה טומטום אינו נוטל – this Mishnah is superseded and the Halakha is that a person of indeterminate sex takes the least of the two of them.

יורש את הכל – so that you don’t say that this is a creature of its own kind, and not worthy of inheritance. This comes to teach us that this is not the case.

השביחו גדולים את הנכסים – while they are still belonging to the estate (before division among heirs).

If a man left elder sons and younger sons, and the elder sons improved the property, they improve it to the common benefit. If they said, “See, what our father has left us, lo, we will work and from that we will eat”, they improve it to their own benefit.
So, too, if a woman (a improved the property, she improves it to the common benefit. If she had said, “See, what my husband left to me, lo, I will work and from that I will eat”, she improves it to her own benefit.
Mishnah three discusses sons who share an inheritance and some of the sons improve the value of the property. The issue discussed is are the sons who improved the value the only ones to profit or is the profit divided equally between all of the inheriting sons. A similar situation is discussed in which a widow improves the value of her dead husband’s property.
In the scenario mentioned in our mishnah Jacob died and left four sons, two who were older, Reuven and Shimon, and two who were younger, Levi and Judah, and Jacob owned a piece of real estate worth 1000 dollars. If Reuven and Shimon were to take this land and improve it, thereby doubling its value, each son’s portion would double. Even though Levi and Judah did not work to improve the value, since it was their inheritance as well, they receive some of the benefit. If, however, Reuven and Shimon said that they were increasing the value of their portions only, than they alone receive the increase in value.
Similarly if a widow were to increase the value of her dead husband’s estate, she would share in the increase with the sons of her husband, or the other heirs. However, if she were to state that she is improving her own lot, than she herself would receive the benefit of her work.
Note: a widow does not inherit from her husband. She is, however, entitled to receive maintenance from her husband’s estate. Maintenance payments will be based on the value of the estate: if there is a large estate she will receive better quality food, clothing and shelter. Therefore, it is in her interest to increase the value of the estate.

השביחו לאמצע – and these words refer, when they improved the estate on account of the estate themselves, for they didn’t take out anything of their own, but only from the estate of their father, they hired workers. And they improved the estate on account of themselves. But if they dug and planted and spent their own money, the improvements they made, they made for themselves.

וכן אשה שהשביחה – In the Gemara (Tractate Bava Batra 144a) we establish it with a woman inheriting such as the case of Reuven who married the daughter of Shimon, his brother. But alas, he died without having any children. And the daughters of Shimon, his brother, inherit him. It is found that his wife, who is the daughter of Shimon, his brother, inherits him with the rest of her sisters. And you might say that with this benefit that she derives due to the emerging rumor that she manages [her husband’s property] and improves it, even if she had said, “see what my husband left me etc.,” even so, she renounced it and wants to improve it for the common fund/estate (and divide the profit equally). But it comes to teach it that she improved it for herself.

שנפל אחד [מהן] לאומנות – to the service of the king, for it is the custom of the king to appoint from all the houses of the city one person [to serve] as custom-collector/publican for one month or two months.

Introduction Mishnah four discusses partnerships between brothers sharing their father’s inheritance and the question of the division of the profits and losses to the partnership.

נפל לאמצע – all the profit, because it was on account of his father that it came time, but if was on his account, because of his sharpness and importance and wisdom that he was taken into the service of he king, what he earned, the profit is for himself.

If brothers were partners and one of them fell into a public office, it falls to the common benefit. If brothers form a partnership to live off their father’s inheritance and one of the brothers is appointed to a job with the government, his salary is split amongst the brothers. The mishnah assumes that he received his job on account of his father’s prestige and therefore the job is in essence part of the inheritance.

חלה ונתרפא – if he became sick by accident, meaning to say, that he was not negligent with himself and he is cured from the estate, but if he got sick from blowing cold winds/cold draughts, and similar things, and it is written concerning it (Proverbs 22:5): “Thorns and snares are in the path of the crooked; [He who values his life will keep far from them],” in this we state in our Mishnah that he is not healed other than from what is his.

If one [of them] got sick and needed healing, his healing is at his own expense. If one of the brother’s got sick, he must pay out of his own share for his healing. Since the sickness is not connected to the inheritance the cost of the healing is not taken out of the inheritance.

שושבינות – it is the manner of wedding gifts (see Talmud Bava Batra 144b) that one takes a meal and a gift to the wedding and eats with him, and the other returns and does the same for that one when he marries a woman. But if the father sent the wedding gift undefined via the hand of one of his sons, and the wedding gift returned after that following the death of the father, it returned to the estate, because it is like a loan, for it can be collected in the Jewish court of law, For a person who brings a wedding gift to his friend can go back and claim the wedding gift from him in a Jewish court, that he should give him the wedding gift in the manner that he had given it to him. And it will be that the second marriage should be like the first marriage: if she is a virgin, she is a virgin, if she is a widow, she will be a widow, and if in public, it will be in public, and if it is private, it will be in private, for the second can say to the first, “I will not do with you other than in the manner that you did for me.”

If certain of the brothers in their father’s lifetime had made a present as groomsmen [at their father’s expense] and [after his death] the present was restored to them, it is restored to the common benefit, for the groomsmen’s gift [counts as a loan] and can be recovered in a court of law. But if [one of the brothers in his father’s lifetime] sent his fellow jars of wine or jars of oil, they cannot be recovered through a court of law, since they count [not as a loan but] as a charitable deed. In the time of the mishnah it was customary for people to send wedding gifts to the bride and groom in order to help them celebrate the seven days of wedding festivities. These wedding gifts were not exactly gifts but rather more like loans, for it was the law that one who received the gift would have to himself send a gift when the original sender got married. If some of the brothers had used their father’s money to send wedding gifts when the father was still alive, when the presents are received in return at the time of the sons marriage, they are split amongst all of the brothers, even those who did not send the gifts and who are not getting married. Since wedding gifts are like a loan, it is as if they never left the possession of the father, and they are therefore subject to the laws of inheritance. In the last clause the mishnah distinguishes between wedding presents and regular presents. If a person gave another person a jar of wine or oil as a present, these cannot be recovered like a loan, for they a form of charity.

אבל השולח לחבירו כדי יין וכדי שמן – without a wedding, or alternatively, at a wedding, and he doesn’t go to eat with him, this is not wedding gifts, but rather a [personal] gift, and they are not collected in the Jewish court.

Questions for Further Thought:
• Section one: What would be the law if the brother received a public office not due to his father’s prestige but rather due to his own abilities? Would he still have to share the salary with his brothers?
• Section three: If wedding gifts were more like loans why did people give them?

השולח סבלונות – it is the custom of grows on the morrow of the betrothal that they send to the house of the betrothed ornaments and kinds of precious goods and pitchers of wine and pitchers of oil, and sometimes, the groom goes to eat there.

If a man sent betrothal gifts to his father-in-law’s house, and he sent there 100 maneh (10,000 and he ate a betrothal meal of but one dinar, [and he afterward divorced his wife] they (the betrothal are not recoverable. But if he did not eat the betrothal meal, they are recoverable.
If he sent many betrothal gifts in order for them to return with her to her his house [when he marries her], they are recoverable. If he sent few betrothal gifts which were to be used in her father’s house, they are not recoverable.
Mishnah four, which we learned yesterday, discussed some laws concerning gifts given by groomsmen to the bride and groom. Mishnah five discusses a related subject, gifts given by a man to his fiancee, after betrothal but before the marriage.
In Jewish law there are two stages to the marriage process, betrothal and marriage. After betrothal the woman continues to live in her father’s house and only moves to her husband’s house at the time of marriage. In our mishnah the husband sends betrothal gifts to the father’s house, a common custom in the time of the mishnah. The mishnah discusses the husband’s ability to recover these gifts should he divorce his fiancee before marrying her (in Jewish law betrothal is binding and therefore requires divorce to sever the tie). According to our mishnah if he ate a celebratory betrothal meal at his father-in-law’s house, he cannot recover the betrothal gifts. The meal is provided by the father-in-law in return for the gifts. Even if the trade is unequal, the deal is sealed and the gifts are unrecoverable.
If he sent many gifts and it was obvious that the husband expected his fiancee to eventually bring the gifts back with her when she came his house at the time of marriage, then the gifts are recoverable if he should divorce her before marriage. Since the husband did not intend to give these gifts as permanent gifts, but rather for them to be “on loan” until they returned to him with her at the time of marriage, he can recover them. If, however, he gave few gifts, then the gifts were intended to be used up in her father’s house. In such a case since he never had an expectation to receive them in return, he cannot recover them should he divorce her before marriage.

אינן נגבין – if he (i.e., the groom) dies or she (i.e., the bride) dies, or he comes to divorce her, for on account of his love and joy of eating he pardoned, and especially when he at a Denar’s worth, but if he at less than a Denar, he did not pardon and he collects the nuptial gifts.

שלח סבלונות מרובים – and even a little, if he explained that on the connection that they come with her, to the house of her husband, then these are collected. But it is the way of things that [the Mishnah] took that it is the manner of nuptial gifts that they send them in order that they will come to the house of the husband, to be many. And those which they send in order that she can adorn herself with them in the house of her father, it is the manner to be few.

ושייר קרקע כל שהוא – (see Tractate Peah, Chapter 3, Mishnah 7 for a similar statement at the beginning of the Mishnah) and the same law applies if he left to himself movable, his gift is a gift. But if he stood and doesn’t return and he who acquired something from him on this same gift, as the gift of someone on their deathbed for a portion, requires acquisition, whether standing or not standing. But if he did not acquire it from his hand, the recipient did not acquire the gift, even if the person on his deathbed died. And especially, if he came to transfer/give possession the gift while living. But if he said: “Give to so-and-so this and that after his death,” he doesn’t require acquisition even if he left something to himself. And a person on his deathbed who came to give a a gift while living, if he did not leave anything to himself and stood, it goes back and even if they acquired it from his hand. It is a Mitzvah on account of death that he heard him when he said: “Woe is he who dies.” It (i.e., the gift) always returns [to its owner] whether he left [something to himself] or he did not leave [something to himself], and even if they acquired it from his hand. But if he died, the recipient acquired the gift, and even without acquisition.

Introduction Mishnah six returns to discuss the major topic of the chapter, inheritance law. The specific subject of this mishnah is laws governing a person who gives away his property while on his death bed and then recovers from his illness. The question is can he recover his property.

לא כתב שכיב מרע – a pitcher of harvest and throws it into his bier, and even if it is not the language of gift of a healthy individual when he walked in the marketplace on his feet and didn’t leave anything.

Generally speaking when a person gives another person a piece of property the giver cannot change his mind once the document is written and signed. However, if the giver was a dying man he may change his mind and recover his property should he recover from his illness. Since we assume that he intended to give the gift only if he were to die, if he were not to die the gift is annulled.

הוא אומר שכיב מרע הייתי – and I have retracted, but the other says: “You were healthy and you cannot retract, he has to bring proof that he was on his deathbed, since after the present we follow, since presently, he is healthy. It is upon him to bring proof that he was on his deathbed at the time of the gift.

If a man who lies dying wrote over his property to others [as a gift] and kept back any land whatsoever, his gift remains valid [even should he not die]. If he did not keep back any land whatsoever, his gift does not remain valid [if he should not die]. If, when he wrote the gift document he retained some land for himself, then we can assume that this is not truly the gift of a dying man. A dying man does not retain any land for himself. Therefore, if he should recover from his illness, the gift is not recoverable. If, however, he did not retain any land for himself, then this is the gift of a man who believed himself about to die. In such a circumstance the gift is recoverable should he recover from his illness.

If it was not written in the document, “who lies dying”, but he said that [he had written the document] while he lay dying and they (those who received the said that he was healthy [when he wrote the document], he must bring proof that he had been dying, according to Rabbi Meir. But the sages say: “He who makes a claim against his fellow bears the burden of proof.” In the scenario in this section the document did not state that he was a dying man and the man did recover from his illness. At that point he claimed that he had written the document as a dying man and therefore the gift is retracted. The recipients of the gift claim that he gave it as a healthy man and therefore the gift is not retractable. According to Rabbi Meir the gift goes to the recipients. Since the person’s last confirmed status is as a healthy man (his current status), we can assume that he was healthy when he wrote the document, and therefore the gift is not a gift given by a dying man. According to the sages, the burden of proof lies on the pursuant, in this case the recipients who wish to receive their promised gift from the giver. Since they cannot prove that he was healthy when he wrote the document he is not obligated to give them the gift.

וחכמים אומרים – we don’t follow after the present but we say: “the claimant must produce evidence” (see Tractate Bava Kamma, Chapter 3, Mishnah 11 as well as the last line of our Mishnah). And the recipient of a gift who comes to remove it from the hand of the giver who is in possession of it, he must bring proof and witnesses that he (i.e., the giver) was healthy at that time, and the Halakha is according to the Sages.

Questions for Further Thought:
• Why does the dying man have to divide up his property before he dies? Why can’t he just say that the gift will not be transferred until after he dies, thereby avoiding the problem of recovering from his illness after having given away his property?

ר' אליעזר אומר אחד בריא ואחד מסוכן – Rabbi Eliezer does not hold by [the statement] that the words of a person on his deathbed are as if they are written and transmitted, and even if one issues directives due to [his imminent] death, he holds that his gift is not a gift, other than through an acquisition, like the gift of a health individual. But the Halakha is not according to Rabbi Eliezer.

Introduction Our mishnah deals with the formal and legal way in which a person may transfer property. In the first chapter of Tractate Kiddushin the Mishnah teaches these laws more extensively. Our mishnah deals specifically with how a dying person transfers his property before s/he dies so that the property will not be subject to the laws of inheritance. In Hebrew the formal transfer of property is called “kinyan”. (See Steinsaltz reference guide, page 254).

כבינתי – it is the Aramaic translation of a brooch of hammered metal.

The first two sections of our mishnah discuss a person who tries to transfer his property to another person orally without using a written document or other formal means of kinyan. According to Rabbi Eliezer, whether the man is healthy or dying, he must perform the transaction in the usual manner that transactions are done, i.e. with kinyan. If he wishes to cause acquisition of land he must either receive money from the acquirer, use a document or the acquirer must demonstrate physical possession of the land (see Bava Batra, chapter 3). If he wishes to cause acquisition of movable property, i.e. things, the acquirer must actually take possession of them by drawing them towards him. In other words, according to Rabbi Eliezer, merely saying that one is giving something to another person does not cause the acquisition to take effect. The Sages respond to Rabbi Eliezer with a story that demonstrates through a precedent that a dying person may indeed transfer their possessions orally. In the story the mother of the sons of Rokhel declared that her expensive veil was to go to her daughter (and not to her sons who would inherit her when she dies). The Sages accepted her words and gave the veil to her daughter, even though no formal acquisition (kinyan) had been made. To this Rabbi Eliezer responds that the sons of Rokhel were wicked and therefore the Sages accepted that the veil should belong to her daughter. In other words the story is exceptional and therefore does not serve as a proper precedent.

תקברם אמם – meaning to say, they don’t bring a proof from them because they were wicked, and the Rabbis fined the sons to fulfill for the daughter the gift of their mother, even though it was not according to the law.

The Sages say: “On a Sabbath his words remain valid, since he cannot write, but not on a weekday.” The sages say that a dying person can divide his property orally on Shabbat, since it is forbidden to write. If, however, he were to do this during the week, when it is permitted to write, the transfer is invalid. Rabbi Joshua disagrees. He says that if they said that he could do this on Shabbat all the more so he may orally divide his property during the week. Rabbi Joshua’s reasoning is that since he could write and transfer property during the week, he is allowed to do so even without a formal document or kinyan.

אבל לא החול – if the person on his deathbed distributed his possessions on a weekday.

Rabbi Joshua says: “If they have stated this rule on the Sabbath, how much more so on a weekday.” Similarly, others may acquire possession on behalf of a minor, but not on behalf of an adult. Rabbi Joshua says: “If they have stated this rule with regards to a minor, how much more so does the rule apply to an adult. Rabbi Joshua and the Sages have a similar dispute on another issue of halakhah. According to the Sages, one may acquire possession on behalf of a minor but not on behalf of an adult. In other words Reuven can legally accept a gift on behalf of Joseph who is a minor, but not on behalf of Shimon who is an adult. Since Joseph cannot legally take possession of the gift himself Reuven may do it on his behalf. Shimon who can legally take possession of the gift must do so on his own. Rabbi Joshua says that if Reuven can acquire possession for a minor, all the more so may he do so for an adult.

קל וחומה בחול – and such is the Halakha, that whether it is a weekday or Shabbat, the words of a person on his deathbed are as if hey are written and transmitted, and there is no need for an acquisition. But if he asked tha they should acquire it from his hand, they acquire it from it, whether on weekdays or on Shabbat in order that his mind should not be troubled by it.

Questions for Further Thought:
Explain Rabbi Joshua’s opinion in section three in light of his opinion in section two. Why did the editor of the mishnah see that these two disputes between the Sages and Rabbi Joshua were similar and therefore place them in one mishnah?

יורשי האב אומרים הבן מת ראשון – and the creditor cannot collect from these properties for the son never took possession of them.

Introduction The final three mishnayoth of chapter nine deal with cases of doubtful inheritances where both the inheritor and the one from whom he inherits die in one incident. We will explain this scenario in our explanation to each individual mishnah.

ובעלי החוב אומרים האב מת ראשון – and the properties fell one hour before the son and they are mortgaged to the marriage contract of his wife and the creditors.

If the house fell down on a man and his father, or upon a man and any from whom he inherits, and he was liable for his wife’s ketubah or to a creditor: the father’s heirs say, “The son died first and the father died afterward”, and the creditors say, “The father died first and the son died afterward.” The School of Shammai says: “Let them split [the property].” The School of Hillel says: “The property remains in its former status [in the hands of those who inherit the father].” In the scenario in our mishnah a man and his father (or someone else from whom he inherits) die in one accident (a house falls on them). We do not know who died first, Jacob, the father or Reuven, the son. The son had creditors to whom he owed money or a wife with a ketubah, a marriage contract, guaranteeing her money upon death or divorce. If Jacob died first, then Reuven would inherit and the wife or the creditors could collect their debts from Jacob’s estate. Since Reuven owned his father’s estate upon his death it is subject to Reuven’s debts. This will be especially important if Reuven died without any money of his own. Only if Jacob died first will Reuven’s creditors or wife be able to claim any money. Since this scenario is best for the creditors and for the wife, they claim that Jacob died first. If, however, Reuven died first, then he never inherited from Jacob. Jacob’s property will go in such a case to his other inheritors and the creditors or wife will not be able to claim anything from Reuven. Since this scenario is best for Jacob’s inheritors, they claim that Reuven died first. The School of Shammai says that in such a scenario the creditors, wife and inheritors of the father split the disputed inheritance of the father. The School of Hillel holds that the money remains with under the assumption of belonging to its previous verifiable owner until proven otherwise. Since the last verifiable owner of the property is the father, his inheritors receive the property until the creditors or wife can prove that the father died first. Question for Further Thought:  Upon what abstract principle is the School of Shammai’s decision based?  Upon what abstract principle is the School of Hillel’s decision based?

בית שמאי אומרים יחלוקו – the School of Shammai holds that the document that stands to be collected is considered as collected, and the inheritors of the father and the creditors, both of them are in possession. Therefore, they divide it.

ובית הלל אומרים – the property is in the possession of the inheritors and is seen as possessed, and the creditor comes to take it from their hands, and he has to bring proof that the father died first.

האשה מתה תחלה – and there is nothing for the inheritors of the wife, for the husband died last and inherited his wife.

Introduction Mishnah nine continues to deal with the topic of doubtful inheritances in which it is unclear who died first, the inheritor or the one from whom he inherits.

נכסים בחזקתן – mort-main (i.e., wife’s estate held by her husband, which in case of her death or divorce he must restore “in specie,” being responsible with all his landed property for loss or deterioration) belongs to present occupants but the School of Hillel did not explain if it is in the possession of the inheritors of the wife which were hers or in the possession of the inheritors of the husband for their responsibility is upon him. Therefore, the mort-main is to be divided.

If the house fell down on a man and his wife, the husband’s heirs say, “The wife died first and the husband died afterward” and the wife’s heirs say, “The husband died first and the wife died afterward”. The School of Shammai says: “Let them split [the property].” The School of Hillel says: “The property remains in its former status the Ketubah to the husband’s heirs and the property that comes in and goes out with her to her father’s heirs.” In our mishnah Jacob and Rachel both died in the same accident and it is unclear who died first. If Rachel died first then Jacob would inherit all of her property, since a husband inherits from his wife. If Jacob inherited Rachel’s property then when he died his inheritors would inherit her (as well as his) property. Therefore, Jacob’s inheritors claim that Rachel died first. If, on the other hand, Jacob died first, Rachel’s inheritors would inherit her property. (They would not inherit Jacob’s property since a wife does not inherit from her husband). Therefore, Rachel’s inheritors claim that Jacob died first. As in the previous mishnah the School of Shammai says that in such a case the money is to be split. The School of Hillel again states that the money reverts back to its last verifiable owner. The ketubah (marriage contract) money last belonged to the husband (it is his until he pays it to her) and therefore his inheritors receive that money. The woman’s dowry which she brought into the marriage and over which the husband did not take title, belonged to the wife. Therefore her inheritors receive this money.

וכתובת אשה – which are a Maneh (= 100 silver denars) or two hundred (denars) and a supplement which remain in the possession of the inheritors of the husband.

Questions for Further Thought:
• How is the School of Hillel’s opinion in mishnah nine consistent with their opinion in mishnah eight?

ונכסים הנכנסים והיוצאים עמה – these are the usufruct (i.e., the wife’s estate of which the husband has the fruition without responsibility for loss or deterioration) for at the time that she enters [into marriage], they enter with her, and if they lessened, they lessen for her, and if they increased, they increased for her, it is found that the inheritors of the wife take all the usufruct and half of the mort-main.

נפל הבית עליו ועל אמו – and she has no other son other than this one. The inheritors of the son say that the woman died first and the son inherited her property and we inherit the son. But the inheritors of the woman from the family of the house of her father state that the son died first and that we inherit the woman.

If the house fell down on a man and his mother, they (the Schools of Shammai and agree that the they split the property.
Rabbi Akiva said: “I agree here, that the property remains in its former status.” Ben Azzai said to him: “We already are distressed over those things upon which there is disagreement, and you are coming to bring disagreement on the points in which they agree.”
The final mishnah of chapter nine continuse to deal with the topic of doubtful inheritances in which it is unclear who died first, the inheritor or the one from whom he inherits.
In our mishnah a man and his mother (who was a widow) died in the same accident and it is unknown who died first. Furthermore, the man had no sons who would inherit him and the woman had no other sons to inherit from her. If the son died first then the mother’s other inheritors would receive her inheritance. If the mother died first then the son would inherit her and his inheritors would receive her (as well as his) inheritance. In such a case the School of Shammai and the School of Hillel agree that all of the inheritors split the property. Since they are all making claims based on inheritance and none of them had prior possession of the property such that we could say that the property reverts to its previous status (as was the School of Hillel’s opinion in previous mishnayoth), there is nothing left to do but split the property.
Rabbi Akiva believes that even in this case the property reverts to its previous status. According to Rabbi Akiva when this woman was originally widowed she reverted to being part of her father’s family (as opposed to her husband’s family). Therefore, when she died, the property is assumed to belong to the inheritors from her father’s side, regardless of whether they can prove that the son died first.
Ben Azzai responds to Rabbi Akiva that it is distressing enough that the Schools of Shammai and Hillel disagreed on so many issues. In Ben Azzai’s opinion Rabbi Akiva should not create a new dispute where previous scholars were in agreement.

אלו ואלו מודים [ – The School of Shammai and the School of Hillel [agree] that they should divide it. But this is not like the case where the house fell upon him and his wife. For in that case, there are two types of property. There is what the husband is in possession of and there is what the wife is in possession of, but here, everything is in the possession of the woman/wife since she was a widow. And both come from the power of inheritance to inherit everything. Therefore, it is divided.

מודה אני בזה – for according to the words of the School of Hillel, we say that is so that the property is left in the hands of the possessors, in the possession of her inheritors from the father’s side, for during her lifetime, once her husband died she is a connected through the tribe of her father. And her monies also during her lifetime are in the possession of her father’s tribe. Therefore, her inheritors from the father’s side inherit her, and the Halakha is according to Rabbi Akiba.

על חלוקין אנו מצטערין – meaning to say, on the disagreement above of the Schools of Shammai and Hillel. We are saddened that they didn’t come to agreement and you say that also with this they are divided. And you came to dispute on the first Tanna/teacher, that they are both equivalent.