2.5. The Connection Between Laws on Inheritance and Laws on Property. The Right of Inheritance of Sons. The Right of Inheritance of Daughters. The Case of the Daughters of Zelophehad. The Law on the Order of Inheritance Through Collateral Lines

The laws on the right of inheritance, as a certain form of the transfer of property from one set of hands to another, are closely connected with the laws on property in general and essentially constitute a part of them. Since the chief object of inheritance consisted in the land allotment as the chief foundation of economic well-being, the laws on inheritance also constitute a legal corollary of the laws on land ownership.

Immovable property was considered the inalienable possession of the entire tribe, and in its parts, the property of clans or families within the tribe. Hence the right of inheritance was naturally limited to these social units, beyond which it could not pass; since the land allotments at the drawing of lots were distributed “according to the number of names” of males (Num. 26:53–55) and received their names so as to pass from generation to generation under these names, the natural heirs of these allotments, upon the death of the owner, are his sons, as bearers of his name and guardians of his lineage.

The law clearly affirms such a right of sons to their father’s inheritance: “If a man dies and has no son, then you shall transfer his inheritance to his daughter” (Num. 27:8). The law does not speak positively of the son’s right to inheritance, but the very form of the law—which makes the daughter’s right of inheritance conditional on the absence of a son—presupposes the son’s right to inheritance as firm and requiring no special provision. This right of the son, apart from its logical derivation from the laws on land ownership attached to the name of a male person in the lineage, has a profound historical foundation that makes this right beyond dispute. For example, Abraham gives all his property to his son (Gen. 25:5; 24:36; 21:10). The division of property among sons was apparently equal, except in the case of the firstborn, who from ancient times enjoyed special privileges in the right of inheritance. This is the so-called right of primogeniture—favor primogeniturae. This ancient right corresponded so well to the new legislation on property—whose main task was to preserve in greater or lesser wholeness the ancestral land holding with a permanent personal representative of the lineage at its head—that Moses fully recognized this right, giving it greater legal solidity by means of a more precise definition of it.

“If a man has two wives, the one loved and the other unloved, and both the loved and the unloved have borne him children, and if the firstborn son belongs to the unloved, then on the day when he assigns his possessions as an inheritance to his sons, he may not treat the son of the loved as the firstborn in preference to the son of the unloved, who is the firstborn, but he shall acknowledge the firstborn, the son of the unloved, by giving him a double portion of all that he has, for he is the firstfruits of his strength; the right of the firstborn is his” (Deut. 21:15–17). By this precise definition of the right of primogeniture, the law gives legal form to an ancient custom which, in its former undefined form, gave occasion to various family quarrels, intrigues, and grievances, which are now brought to an end. The right of primogeniture granted the privilege of a double share in the inheritance. The firstborn, the law says, must “receive a double portion of all that he has.” The law confirms this ancient right, says Saalschütz, because it is closely connected “with the provisions of the law on land ownership and with the special principles laid as the foundation of family life.” In correspondence with them, the one who was called, after the father’s death, to be the head of his house received the larger share of the inheritance so that he could maintain the hereditary dignity of the house (something similar to the more recent institution of entails).

The right to a double share in the inheritance extended, as is evident from (Deut. 17), not only to immovable, landed property but to everything that existed—and consequently to movable property as well. Whether the sons of concubines also received a share in the inheritance, and if so, which share, the law does not define, leaving the matter to long-standing custom and established practice. And according to custom they too inherited a share of the estate equally with the other sons, except for the firstborn. Thus Jacob in his blessing makes no distinction between the sons of his wives and the sons of his maidservants (concubines) (Gen. 49:1 and elsewhere; cf. Gen. 35:22). The case usually cited against this—the disinheritance of Ishmael in favor of Isaac—proves rather the proportional nature of the division of inheritance, since Sarah, fearing that Abraham would divide his property also among the sons of the concubines and would thus deprive her own beloved son of a significant portion of wealth, insisted on the expulsion of both the concubines and their sons. “And the thing was very displeasing to Abraham”—that is, as it were contrary to custom (Gen. 21:9–11; cf. Gen. 25:5–6). Sons of harlots apparently did not inherit at all, as is shown by the disinheritance of Jephthah—who was the fruit of an illicit union—by the brothers of his father from a share in the inheritance (Judg. 11:1–2). But Jephthah’s very protest, and his considering such disinheritance to be hatred and cruelty, shows, as Michaelis rightly says, that this case was not an ordinary one. The general thought of Mosaic legislation in this case is that every male member of the lineage, bearing the family name, should enjoy also the family holding connected with that name.

The nearest heir after a son was a daughter. “If a man dies and has no son, then you shall transfer his inheritance to his daughter” (Num. 27:8). The law recognizes the daughter’s right to inheritance but, by its clear expression, makes this right conditional on the absence of a son—that is, the daughter inherits only when there is no son; in the presence of a son, consequently, she does not inherit. In biblical practice several cases are presented of a daughter inheriting a father’s property in the presence of a son (an examination of them is given in the chapter on “family relations”). The legal provision under examination regarding the daughter’s right of inheritance was prompted by a circumstance that demonstrated the possibility of a violation of the original distribution of land according to names. Zelophehad, who had been registered in the census to receive an hereditary allotment, had no sons but had five daughters. His daughters “came before Moses and before Eleazar the priest and before the chiefs and all the congregation, and said: Our father died in the wilderness. He had no sons. Why should the name of our father be taken away from his clan because he had no son? Give to us a possession among our father’s brothers” (Num. 27:2–4). This petition of the daughters of Zelophehad—to give them possession of their father’s allotment—appears to point to an ancient customary right by which daughters absolutely did not inherit, even when there were no sons; otherwise their petition would be purposeless and superfluous. So Michaelis and Saalschütz understand this fact. But such an understanding is hardly well-founded, since in customary law there were even cases of daughters inheriting in the presence of sons. A more well-founded supposition is that their petition was occasioned not by any ancient right absolutely depriving them of inheritance, but by the special circumstances in which they found themselves as heirs: they were heirs of such property of their father that he had not actually possessed, since he died “in the wilderness.” Consequently, their petition was prompted by fear of being passed over at the actual, real distribution of the land. They were in a certain sense asking for an independent allotment, not simply for an inheritance: “Give to us a possession among our father’s brothers”—they say. The law confirms them in the father’s right, which he had received ante rem and of which only the daughters were actually to take advantage. On the occasion of this circumstance the law, in order to define precisely the gradation of inheritance, sets out the essence of the legislation on rights of inheritance, among which is also recorded the right under examination—the daughters’ right to inherit from a father who left no sons.

Thus, in the absence of a son, the allotment is transferred to the daughter; she becomes the representative of the lineage that has died out in the male line and the bearer of its name. But granting the daughter the right to her father’s allotment could entail a violation of the proper distribution of land holdings in general by tribes, since a daughter, having married into another tribe (which was possible), would add her allotment to the tribe of her husband, taking it away from the tribe of her father. Such a fact would be a contradiction of the general Mosaic laws on land ownership, according to which land plots in their distribution by tribes were the inalienable possession of the tribes. In view of the possibility of such a fact—the danger of which was expressed by the heads of the families of the clan to which the daughters of Zelophehad belonged—a law was established according to which “every daughter who possesses an inheritance in any tribe of the people of Israel shall be wife to one of the clan of the tribe of her father, so that every one of the people of Israel may possess the inheritance of his fathers. So no inheritance shall be transferred from one tribe to another tribe, for each of the tribes of the people of Israel shall hold on to its own inheritance” (Num. 36:8–9). By this law, the possibility of a violation of the rights of the tribe to the individual plots under its jurisdiction was removed.

The order of inheritance through collateral—ascending and descending—lines is briefly defined in the following provision: “And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father’s brothers. And if his father has no brothers, then you shall give his inheritance to the nearest kinsman to him of his clan, and he shall possess it; and it shall be for the people of Israel a statute and rule” (Num. 27:9–11). With this brief provision, Moses concludes the laws on the order of inheritance, leaving detailed, comprehensive regulation to custom and history. Into more detailed regulation the lawgiver enters in the area of laws on debts, which also constitute a part of the laws on property in general.