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236 Agnates AKuosticism liis

surviving

TIIK

fiithiT.

as

it

diil

by

tlio

JEWISH ENCYCLOPKDIA

Koiimn

liiw also;

hers and sisters and their descendants. Neither the Ihhrews niir the IJinnans shanil in the slninire notinn of the coinnKin law of Enjiland. that land must in no ease " ascend." Both Hible and Mishnah treat the daiiu'liter only in the .siufiular; hut if there were several daufrhters they divided eciually. 80 did the several sons, a.side from the double share of the tirstborn. which, however, attached oidytoan inheritance from the father (in which his eldest son. irrespective of the situation of the inotli<r. had a double share Dent. ..i. I.VIT), and not to succession from the mother or brother. " Tiider the words of Scri]ilure. "of all that he hath (literally, "all that is found with him ''), it is held that the double share is allowed only of such estate as the father is posses.sed of at the time of his Children's death. Hence, if the father's brother Share. dies after him, the first son does not receive a double share of the estate which conies to the sons from this source throujrh the father. And this notion is carried so far that even a loan or other demand owiufj to the father at the time of death, when collected, is divisible equally; and the eldest son mustalso recompense his brothers in money for the fruits or corn ears that have grown from buds and stalks .since the father's death. Wlu'ii a tirstborn son has died before his father, his own children take the double share in the irrandfather's estate. Thus, when ,1 has two sons, //and ('. who die before him, anil .1 dies, lln daujrhter (if lie has no son) receives two thirds of A'k estate, and C's children one third (B. B. viii. 4, and Gem. ibid. Vi'ibit Kif]. "Hosheii ha-.Mishpat," i; 2TH); and generally speaking, under the principle of representation, remote descendants of the decedent, or of a coniinon ancestor, always take by families (per utir/icx) and prefcrciui- to

iiiul tliisiii

1)1(11

—



never by heads

(«/• nijiitn).

come

after brothers and their descendants. Although they are not named in the Bible, the Mishnah takes ycconnt of them (B. B. viii. 1): "A man inherits from his mother. an(l the husband from the wife, and the children of sisters inherit, but do not transmit"; and with these words it excludes the cognates, that is, the kindred on the mother's side. The right of the surviving husband to inherit the estate of his wife is not deriv<'d from Scripture. The Talmud (B. B. 1114) points only to an obscure hint in Num. .xvii. 11 to suiiport the customary law of inheritance o this extent but the wife never inherits from the husband. Illegitimates inherit, transmit, or, as links in the line of descent, pass a succession, in the sjime manner as Sisters

t



those born in wedlock; uvenii nmmzer (child begotten in incest or adultery) mate Chil- has the stime .standing as a legitimate dren. child. From this rule are excejited children that are the fruits of intercour.se with a " Canaanite" bondwoman or with a Gentile because such children are reckoned after the mother, not after the father (comjiare Dent. vii. 4). This full kinship of illegitimates (subject only to this exception) with the fat her and his Agnates is recognizi'd not only for the purjiose of succession, but for all purposes; thus the law of tin- levirate applies to a natural brother. In fact, the5Iislinalilaysd<iwn the rule of equality under the very head of the levirate (Yeb. ii. 5): "lie who is a brother to somebody from, an// source puts his brother's wife under the duly of the levirate. and is a brother for every purpose, except Illegiti-



when one brother comes from a bondwoman, or from a Gentile mother when one is a son from any source, he frees his father's wife from the levirate, and is guilty of a deadly sin in striking or cursing the father,

and

236

son for all jiurpose-s. etc. " (see also JlaimoiiNalialot," i. 7). The only ditlicully resting on an heir, related through an illegitimate birth, is how to prove his kinship. Here hi' law deems recognition by the ancestor who transmits the inheritance snilicient and the father's word is believed when he say8"N. N. is my son "(B. B. viii. (!, sec .Mainioiiides, is his

ides,

•'

I



1-8). Israelite who lose his standing as his children who are I.e.. iv.

An

becomes an apostate does not an agnate thereby, neither do born of an Israelite mother. Should the estate of a deceased (it utile fall under the jurisdiction of a .lewish court, it must be given to histientile kinsmen acconling to the Gentiles rulesofthe Mosaic law. Though the and sagi'S held the chastity of the heathen Proselytes, in such low repute as not to recognize the kinship between heathens and eonverts, the reputed kinship between one heathen and is deemed sullicieul to determine the right of succession. Every full-blooded Israelite is supposed to have agnatic heirs; for, if need be, the common ancestor woidd be found in the head of his tribe. But a proselyte dying without issue born while he was a Jew has no heirs, as the marriage of (Jentiles is not recognized as a basis of heirship, and the estate of a proselyte in such cases has no owner (see ^lishnah B. K. iv. 7, and elsewhere). The preference of sons over daughters is greatly moderated and often reversed by the right of t he latter to maintenance, based on the marriage contract, or AriKhiili. R. .Moses Isserles, in his notes to the " Hoslien ha- JIisli])at " (^ 27fi, 4) points out that a person born out of wedlock, whose father is unknown, stands on the .same footing as a ]U'oselyte. If such a person aciiuires ]iroi>erly and dies without issue, he has no heirs, and his estate belongs to the tirst occupant. In short, there is no heir by the mother's side either in the ease of legitimate or of illegitimate children. The right of hoichjiot {ni//>iti<)). by whichadvauces made by the father in his lifetime to his children are reckoned as belonging to the estate, so as to equalize the shares of the children after his death, is known both to Kouian and to English-AmeriRig'ht of can law, but was not recognized (MishHotchpot. nab B. B. viii. 7. X) either in sharing the inheritance or in providing maintenance for the daughters. The sjtme rule for the inheritance of lands applies to goods, effects, or slaves; and, as under the Roman law, the whole estate is treated as one aggregate. Relationship is spoken of in the >Ii.shnah as an objection against acting as judges in criminal cases as in civil disputes or as witnesses (Sanli. ill. H, 4); btit here Agnates are not the only kindred to whom the opposite party may object. In fact, affinity is

another

—

—

ground enough. "These are relations [for this purpose!: His [a person's) father, liis Itrother. his father's brother, his mother's blither, his sist^'r's hiisbantl, liis paternal or maternal aunt's husband, his sl^'pfather. his falher-in-Iaw, and his brother-in-law (by the wife), with their sons and sons-in-law, and his stepson."

This is the tradition according to R. Akiba; but the older tradition (tirst !Mishnah) was as follows; " His father's hrothrr and his father's brother's -son and whoever is i-apjtble of inheritinp. or who is at the time connected by marriage with a woman nearest in descent."

This earlier view seems to have confined the objection to Agnates, and to have proceeded on the grouud that the nearest agnate was interested in the property or demand in dispute, and was therefore unfit to act as judge, or to give impartial testimony. L. N. D.