1. Freedom of Disposition

The law of succession is in fact a part of family law, which in turn is a result of the prevailing social structure. We have seen that in patriarchal society all the functions of the family vested in the father, including the full management of the family property.1 When the father died, there arose the need for a new leader to guide the family in religious, military, and economic matters. In order to prevent a split of the group, the father used to appoint the worthiest of his sons to succeed him in the patriarchal office. In Hebrew law, then, succession by will preceded succession by law.2

In general, the leadership passed to the firstborn son who fulfilled all the deceased's functions. Originally the whole estate devolved upon him.3 However, the power of leadership did not pass automatically, but had to be conferred by the father in a special blessing: "Be lord over your brothers, and may your mother's sons bow down to you" (Genesis 27:29, 37).

Under the patriarchal system, a father was free to choose a younger son as his successor if he found the eldest unworthy of the office. One example is the disinheritance of Reuben (Genesis 49:3–4; 1 Chronicles 5:1); another, appointment of King Solomon instead of his elder brother Adonijah (1 Kings 1:17–18; 2:15).4

Even the law of Deuteronomy 21:16–17 regulating the right of the firstborn still speaks of "the day on which one causes one's sons to inherit," referring to an oral testament. This was perhaps the first limitation on the ancient freedom of disposition, obliging the father to respect the right of his firstborn by giving him a double portion. A will was also called "the command given to one's sons" or "to one's house" (Genesis 49:29, 33; 2 Samuel 17:23; 1 Kings 2:1; 2 Kings 20:1) and included moral as well as material dispositions.5

Job 42:15, indeed, mentions a testamentary disposition that gave equal shares to both daughters and sons, but this was certainly an exception to the general rule of succession. Genesis 15:2–3 (Abram and Eliezer) and Proverbs 17:2 ("a wise servant . . . shall have part of the inheritance") also refer to testamentary dispositions in favor of slaves, including probably the grant of their freedom. The marriage deeds of Elephantine provided for the mutual rights of the spouses in the absence of children. This is again a kind of testamentary arrangement. Among these papyri are some specific gifts in contemplation of death.6 Tobit 8:21 and 14:13 show the bride's parents promising their son-in-law an inheritance as a dowry, while Ben Sira 33:20 advises the owner of property against handing it over during his lifetime to "son, wife, friend or brother." Other donations are referred to in Judith 8:7, Jubilees 45:16, and Testament of Job 45–46.

Assuming that freedom of testation existed in Hebrew law, we must ask why Abraham had to make gifts to the sons of his concubines and to "send them away from Isaac his son, while he yet lived" (Genesis 25:6), and why Jacob had to adopt his grandchildren Ephraim and Manasseh (Genesis 48:5, 22) in order to confer upon them the right to inherit a share of his estate together with his sons. These passages seem to indicate a tendency toward limiting the patriarchal power of free disposition, although this right was never abolished.

2. Legal Succession

It is possible to understand the origins of the Hebrew law of succession by referring to the word naḥalah, which meant both "real property" and "inheritance." As in Greek law,7 every private estate was considered by the Hebrews after the settlement to have been allotted by Moses and Joshua to a particular house or family. The main function of the rules of succession was to preserve this original distribution among the different tribes, clans, and families.

The law of levirate (Deuteronomy 25:5), for instance, was based upon the assumption prevailing shortly after the settlement that only male heirs could be successors. Brothers still lived on an undivided estate, distribution having taken place only on a clan level. The firstborn expected from a levirate marriage was said to be the only one to "succeed to the name" of the deceased. This corresponds perhaps to the former rule of universal succession mentioned above.8

Another stage is represented by the law of primogeniture (Deuteronomy 21:15–17). The distribution of the land had proceeded as far as household level, and there was no justification for the exclusive right of the firstborn. He was, however, still entitled to a double share in his father's estate.9 Even this rule did not make the firstborn legal heir to a double share, but merely required the father to give this to him by will. The transaction was effected by an acknowledgment of the firstborn as such, reminiscent of the formulae of adoption and dismission from the rights of succession.10 The application of this rule to "all that he has" shows that personal as well as real property was included in the estate.11

The remainder of the estate was divided in equal shares among the deceased's sons. The dismission of the sons of the concubines described in Genesis 25:5–6 proves that they were considered heirs equal to the chief wife's sons and excluded only in this particular case. The same rule probably applied to the sons of a bondwoman, if the father so decided (Genesis 21:10–13; 30; 49), while the son of a prostitute, it seems, did not inherit (the sons of Gilead could expel Jephthah, Judges 11:1–2).12

Finally, daughters were entitled to inherit in default of sons provided that they married within the clan (Numbers 27:1–11; 36). These passages reflect the tribal system as it existed shortly after the settlement. According to the demand of Zelophehad's daughters, the order of succession was fixed. Sons inherited according to law; in default, the estate was "transferred" to the daughters; and in their default, it passed in turn to the deceased's brothers, uncles, or generally to his kinsmen. Though similar to the Athenian epiklerate, the Hebrew law of female succession allowed the heiress to choose her own husband, her choice being limited, however, to members of her clan.13

No mention is made of the father's right to inherit the estate of a son who predeceased him, the explanation being that the family estate could not have been owned by the son during his father's lifetime.14 In the Aramaic papyri, on the other hand, both father and mother are referred to as possible heirs.15

The widow was not granted any right in the inheritance, neither was the daughter allotted a share where sons survived.16 We have mentioned above the marriage contracts from Elephantine, which provided for the rights of the surviving spouse in default of children. While the widower was appointed heir, the widow seems to have enjoyed a mere life interest, sometimes durante viduitate only. Biblical law, on the other hand, did not ordinarily allow a woman any portion in the family property, in order to prevent its passing to another family. This is also the reason for the absence of a provision making the widower heir to his deceased wife's property.17

The law of succession did not provide for the right of a creditor to demand satisfaction from the estate, although this right must have existed at least so long as the sons themselves could be seized in distress. A corresponding clause is usually included in the Aramaic papyri.18

Notes

1. See p. 25, above.

2. For Roman law this theory has been established by Bonfante, Scritti Giuridici 1 (Turin, 1926), 101ff.; compare Max Kaser, Das römische Privatrecht (Munich: Beck, 1955–59), 1:82; Ze'ev W. Falk, "Testate Succession in Jewish Law," Journal of Jewish Studies 12 (1961): 67.

3. Compare Egyptian law in Erwin Seidl, Einführung in die ägyptische Rechtsgeschichte bis zum Ende des neuen Reiches (Glückstadt: Augustin, 1951), 57. On the Hebrew firstborn, compare Johannes Pedersen, Israel: Its Life and Culture (London: Oxford University Press, 1926–40), 3–4:312ff.; Ephraim Neufeld, Ancient Hebrew Marriage Laws (London: Longmans, 1944), 263ff.; Elijah S. Hartum, "Firstborn" (in Hebrew), in Encyclopaedia Miqra'it (Jerusalem: Bialik, 1950), 2:123; Roland de Vaux, Ancient Israel: Its Life and Institutions, trans. John McHugh (London: Darton, 1961), 72; Isaac Mendelsohn, "On the Preferential Status of the Eldest Son," Bulletin of the American Schools of Oriental Research 156 (1959): 38–39; Ze'ev W. Falk, "Endogamy in Israel" (in Hebrew), Tarbiz 32 (1963): 31–32.

4. Compare Codex Hammurabi 168–69; Godfrey R. Driver and John C. Miles, The Babylonian Laws (Oxford: Clarendon, 1952–55), 1:348; compare Ze'ev W. Falk, "Mutual Obligations in the Ketubah," Journal of Jewish Studies 8 (1958): 215; Falk, "Testate Succession," 67.

5. Otherwise, Reuven Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (Oxford: Clarendon, 1960), 7–8.

6. Reuven Yaron, Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon, 1961), 65ff. Compare Codex Hammurabi 150, 165.

7. Paul Vinogradoff, Outlines of Historical Jurisprudence (London: Oxford University Press, 1920–22), 2:202–3.

8. Compare pp. 153–54.

9. See p. 172. For Babylonian parallels, compare Driver and Miles, Babylonian Laws, 1:331.

10. David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 5ff. See pp. 135–36, 146–47, 149, 151; compare Codex Hammurabi 170–71.

11. Compare Leviticus 25:46 applying the term naḥal to slaves.

12. Compare Codex Lipit Ishtar 25, 27; Codex Hammurabi 170–71; Driver and Miles, Babylonian Laws, 1:332; de Vaux, Ancient Israel, 90; Samuel E. Loewenstamm, "Inheritance" (in Hebrew), in Encyclopaedia Miqra'it, 3:790.

13. Falk, "Endogamy in Israel," 32–33.

14. Samuel E. Loewenstamm, "Israel Exploration," Qiryat Sefer 34 (1959): 47.

15. Yaron, Introduction, 68. According to Rabbi Johanan (third century C.E.), the mother inherited her son's property (Babylonian Talmud Baba Batra 114b), and this was also the view of the Qara'ites who referred to Ruth 4:9.

16. Compare Codex Lipit Ishtar 22; Codex Hammurabi 172, 180–82, 184.

17. For the position in Babylonian law, see Driver and Miles, Babylonian Laws, 1:334ff. The Talmudic right of inheritance of the widower in default of children (Mishnah Baba Batra 8:1) probably developed from a contractual provision, such as that included in the Aramaic papyri. See Louis M. Epstein, The Jewish Marriage Contract: A Study in the Status of the Woman in Jewish Law (New York: Jewish Theological Seminary of America, 1927), 121ff.

18. Arthur E. Cowley, ed. and trans., Aramaic Papyri of the Fifth Century B.C. (Oxford: Clarendon, 1923), 29–32; Emil G. Kraeling, The Brooklyn Museum Aramaic Papyri (New Haven: Yale University Press, 1953), 11; Yaron, Introduction, 97.