The last mishna in chapter 11 of Y'vamos says that if a woman didn't wait long between two marriages and therefore we don't know whether her son, say Samuel, is from the first husband, Aaron, or the second, Baruch, then Samuel doesn't inherit either of the possible fathers. Rav and Tif'eres Yisrael explain that this because the definite heirs can prevent him from doing so, claiming he's not an heir. What if there are no definite heirs: specifically, what if Aaron is a convert who has no relatives besides Samuel? Do we say that his estate is ownerless like that of a convert who died with no relatives, or that Samuel inherits him? From the language of the mishna, "he doesn't inherit them", it sounds like the estate is ownerless; but from the reason given by the aforementioned commentaries, it sounds like this would be an exception. Does anyone deal with the question explicitly?

  • Interesting, who's המוציא here? and from whom. – Al Berko Apr 15 at 9:42
  • The Gemara about this is in daf 37a. Good question. – kouty Apr 15 at 10:20
  • @kouty It talks about cases where there’s a ספק and some ודאות, but it doesn’t seem to discuss a case where the only heir is a ספק. – DonielF Apr 15 at 13:46
  • I had a mistake it's in 38b . – kouty Apr 15 at 13:51
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    Just from first principles, I would say that since the estate of a ger without relatives is ownerless, whoever gets it first may keep it (כל הקודם זוכה). If someone got there before the doubtful heir (Samuel), he would be in the same situation as the rightful heirs in the mishna - there's no obligation to give it up in the absence of definitive proof of paternity. – Josh Friedlander Apr 15 at 14:31

If Aharon was a convert and his unique heir (safek heir), and Baruch is married to his mother, Aharon is a safek Convert who died without heirs, safek if he has a heir.

If someone makes a tefisa on the estate of Aharon, he argues, there is no Yorshim, give a proof you are a heir, and Samuel says I am a heir.

If heir is not Mechusar Guvayna, Samuel is prominent. See Gemara Yevamot 38b.

והתנן (משנה ב"ב קנז' א): נפל הבית עליו ועל אביו, עליו ועל מורישיו, והיו עליו כתובת אשה וב"ח, יורשי האב אומרים: הבן מת ראשון ואחר כך מת האב, וב"ח אומר: האב מת ראשון ואח"כ מת הבן - ב"ש אומרים: יחלוקו, וב"ה אומרים: נכסים בחזקתן והא הכא יורשי האב ודאי, וב"ח ספק, וקאתי ספק ומוציא מידי ודאי קסברי ב"ש: שטר העומד לגבות כגבוי דמי.‏

A Baal chov (following the opinion that Shtar is not considered as cached) is Mechusar Guvayna before he takes a part (by authorization of Bet Din) but heirs aren't. They have a part before they take something. Moreover, even according to the opinion that says brothers who share the inheritance are as buyers, here there is only one heir and this opinion is not relevant. But we can argue a lot with this.

But I have a clear case that emphasize the superiority of Samuel toward a stranger. In the known case of שנים אוחזים בטלית

The stranger says I found it from the Hefker, because it's Nichse Hagger. Samuel says Mima Nafshach, if I'm not the son of Aharon I found it, and if I am the son of Aharon, it's mine before I come here. The Argument of Samuel is better because he has a tsad of Mare Kama, the stranger has'nt such a side. So we can say that Samuel has more than the stranger if not all.

There is a similarity with a case in Yevamot 38a.

Case 1.

ספק ויבם שבאו לחלוק בנכסי סבא ספק אמר האי גברא בר מיתנא הוא ופלגא דידי הוא יבם אמר את בראי דידי את ולית לך ולא מידי הוי יבם ודאי וספק ספק ואין ספק מוציא מידי ודאי

The Gemara brings another case, that of one of uncertain descent, who is either the son of the deceased or the son of the yavam, and the yavam who came to divide up the possessions of the grandfather, i.e., the father of the yavam and the deceased, and each one made a claim to the inheritance. The son of uncertain descent said: That man, referring to himself, is the son of the deceased, and therefore half of the possessions are mine because the inheritance should be split between the two sons, i.e., the deceased and the yavam, and since I am the sole heir of the deceased, I should receive his portion. The yavam said to him: You are my son, and therefore you have absolutely no rights to the possessions; rather, I should receive all the inheritance. One half is mine because I am the grandfather’s son, and the other half, which would have gone to my deceased brother, I should receive by virtue of the fact that I consummated the levirate marriage with his widow. The Gemara rules on this case: This is a case in which the yavam has a definite claim because he is the grandfather’s son, and the son of uncertain descent has only an uncertain claim, and the halakha is that one with an uncertain claim cannot extract property from one who has a definite claim to it. Therefore, the yavam receives all the inheritance.

Tosfot in BM 2a says, by comparison between a case in Mishna BM (2a in Bavli) to the up cited case. The case in is:

Case 2.

If this one says: All of it is mine, and that one says: Half of it is mine, since they both agree that half of the cloak belongs to one of them, the conflict between them is only about the other half. Therefore, the one who says: All of it is mine, takes an oath that he does not have ownership of less than three parts, i.e., three-fourths, of it, and the one who says: Half of it is mine, takes an oath that he does not have ownership of less than one-quarter of it. This one takes three parts, and that one takes one-quarter.

Tosfot asks:

וא"ת ונימא דאין ספק מוציא מידי ודאי דהאומר כולה שלי יש לו בודאי חציה והאומר חציה שלי ספק אם יש לו בה כלום כדאמרינן בפרק החולץ (יבמות דף לח.) ספק ויבם שבאו לחלוק בנכסי סבא ספק אמר אנא בר מתנא אנא ואית לי פלגא ויבם אמר את ברא דידי ולית לך ולא מידי הוה ליה יבם ודאי וספק ספק ואין ספק מוציא מידי ודאי וי"ל דהתם יבם שהוא בנו של סבא הוי ודאי יורשו ולא יוציא הספק מספק ממונו אבל הכא אין סברא מה שהוא ודאי בחציו שיועיל לו לחציו השני

Why not to say: The man who argues that that the whole Talit is his is a Vaday, because he has surely one half, the man who argues that one half is his is Safek? And if this statement is true, the man who argues the whole talit is his could take the entire talit, as the Gemara in Yebamot case 1.

We need to explain that the case 1 is different because the Yabam will surely take one half of the estate. So the Safek son cannot take from him even one half through his status of Safek. But in case 2, his owness for one half has no influence on the second half.

Regarding our question, the owness of the Samuel as heir has an influence on the whole estate, and his Taana that he takes it first is reinforced, so perhaps he will take all the Talit because he is more vaday than the stranger. This is an attempt of chiddush only.

  • Thanks for this answer. It is clear that there is a lot of "meat" to this question! Would you be able to summarise your bottom line, since it isn't so clear? Are you suggesting that OP's case is more similar to שניים אוחזין בטלית? – Josh Friedlander Apr 16 at 9:44
  • This question is too hard for me, I had an idea to reduce a part of the question. So I build a case when the safek heir and an other man are arguing on a tallit from the father-safek&ger. I think that in this case the safek may be better than the זה אומר חציה שלי וזה אומר כולה שלי because of the strength of vaday. I remember that the Vaday is a proportional value, Vaday compared to the stronger. So I assume that he take the entire tallit. I need to review Yebamot 38 scrupulously – kouty Apr 16 at 9:52

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