Talmud - Bava Batra 140b בבא בתרא ק״מ ב׳

What is the halakha with regard to sustenance the deceased pledged to give the daughter of his wife from a previous marriage? Does it reduce the value of the estate? What is the halakha with regard to the sustenance to which his widow is entitled? Does it reduce the value of the estate? Furthermore, with regard to his widow and daughter, which of them takes precedence if the estate is insufficient to provide sustenance for both?

Rabbi Abbahu said to Rabbi Yirmeya: Go now and come back tomorrow. When he came back, Rabbi Abbahu said to him: Resolve at least one of your questions, as Rabbi Abba says that Rabbi Asi says: The Sages established the status of the widow in relation to the daughter as equivalent to the status of the daughter in relation to the brothers in the case of a small estate. Just as in the case of a daughter in relation to her brothers, the daughter is sustained and the brothers go and request charity at the doors, so too in the case of a widow in relation to the daughter, the widow is sustained and the daughter goes and requests charity at the doors.

§ The mishna teaches: Admon says, rhetorically: I lost out just because I am male? Rather, he holds that the sons also receive sustenance. The Gemara asks: What is he saying? Abaye said that this is what he is saying: Because I am male, and I am fit to engage in the study of the Torah, I lost out and must go begging instead of studying the Torah? Rava said to him: If that is so, should one conclude that it is only one who engages in the study of the Torah who inherits, whereas one who does not engage in the study of the Torah does not inherit? Rather, Rava said that this is what Admon is saying: Because I am male, and I am fit to inherit in the case of a large estate, should I lose my inheritance entirely in the case of a small estate?

MISHNA: With regard to one who left behind sons and daughters and a tumtum, whose halakhic status as male or female is indeterminate, the halakha is as follows: When the estate is large the males direct the tumtum to the females and exclude him from the inheritance, claiming that perhaps the tumtum is female. When the estate is small, the females direct the tumtum to the males and exclude him from receiving sustenance, claiming that perhaps the tumtum is male.

With regard to one who says: If my wife gives birth to a male the offspring shall receive a gift of one hundred dinars, if she in fact gave birth to a male, the offspring receives one hundred dinars. If he says: If my wife gives birth to a female the offspring shall receive a gift of two hundred dinars, if she in fact gave birth to a female, the offspring receives two hundred dinars.

If he says: If my wife gives birth to a male the offspring shall receive a gift of one hundred dinars and if she gives birth to a female the offspring shall receive a gift of two hundred dinars, and in fact she gave birth to both a male and a female, the male offspring receives one hundred dinars and the female offspring receives two hundred dinars. If she gave birth to a tumtum, the tumtum does not receive anything. If he said: Whatever offspring my wife gives birth to shall receive a gift of a certain sum, and she gave birth to a tumtum, the tumtum receives it. And if there is no heir other than the tumtum, the tumtum inherits all of the estate.

GEMARA: The mishna states that the males direct the tumtum to the females. The Gemara asks: Does this mean that they direct him, and he takes sustenance like a daughter? Isn’t it taught in the latter clause of the mishna that if one said that either his male or female child will receive a certain sum once his wife gives birth, and she gave birth to a tumtum, the tumtum does not receive anything? This indicates that the tumtum does not have the rights of a female. Abaye says: The mishna means that they direct him to the females, but he has no rights to sustenance.

And Rava says: They direct him to the females and he has a right to sustenance. And with regard to the latter clause of the mishna, which grants the tumtum nothing at all, there we arrive at the opinion of Rabban Shimon ben Gamliel, as it is taught in a mishna (Temura 24b): If one consecrates a firstborn animal while it is still a fetus, stating that if it is male it shall be a burnt-offering and if it is female it shall be a peace-offering, and the mother gave birth to a tumtum or a hermaphrodite [androginos], Rabban Shimon ben Gamliel says: It is not imbued with sanctity, as it is neither male nor female. So too, in the case discussed in the mishna here, Rabban Shimon ben Gamliel maintains that the tumtum receives nothing, as he is considered to be a distinct entity of indeterminate sex, neither male nor female.

The Gemara raises an objection from a baraita: A tumtum inherits as a son and is sustained as a daughter. Granted, according to Rava, the baraita can be explained to mean that the clause: Inherits as a son, is in the case of a small estate, as the daughters direct the tumtum to the sons, and just as there is no inheritance for the sons, there is none for the tumtum either. And the clause: And is sustained as a daughter, is in the case of a large estate, as the sons direct the tumtum to the daughters, and the tumtum receives sustenance along with them.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 140b examines inheritance priorities between a widow and daughter for sustenance from a small estate, plus Admon's debate on sons' rights.