We are now at the ninth Mishnah in Chapter Nine. This is the second of three cases where two people die simultaneously and it is unknown who died first, leading their heirs into a dispute. Our Mishnah discusses a husband and wife who die together in a sort of blended family: she has children from her first marriage, he has children from his first marriage, and they have no children together.
Since it is unknown who died first, it is unknown to whom the wife's property passes, as a wife's natural heir is her husband. We have two possibilities:
The wife died first: Her husband inherits her estate, and since he dies a moment later, his side of the family will ultimately receive her property.
The husband died first: At the time of her death she has no husband, and therefore her children are first in line to inherit and they take everything.
We must first clarify a case that is not the case of our Mishnah: if the couple had mutual children, the mutual son would be a certain heir. For if she dies first, her property passes to her husband and from there to that son; and if he dies first, her property passes directly to her son upon her death. Either way he is a certain heir, and the other claimants are only doubtful. Therefore he would take everything, since a doubt cannot override a certainty. But this is not the case of our Mishnah.
Our Mishnah deals with a situation where there are no mutual children, and her children and his children dispute who deserves her property. Beis Shammai and Beis Hillel disagree on this. However, to understand the Mishnah in all its details, we must first introduce that a married woman may have three types of property:
The three types of property:
Nichsei tzon barzel - The wife brings a property into the marriage, let us say an apartment building, and the husband assumes responsibility for any profit or loss in its value. The property is transferred to his ownership and the deed is registered in his name, but in return he commits to her a fixed sum, say a million dollars, for bringing in the property. It turns out that both are partners in it: the property is registered in his name, while she has a superior claim to that amount in any case.
Properties that enter and leave with her, also known as nichsei melog - The wife brings an orchard into the marriage, but it remains registered in her name and ownership does not pass to the husband. As long as they are married, the husband is entitled to benefit from the fruits and the yield, a right known as "the right to consume the fruits." If they divorce or the husband dies, she takes her property back exactly as it is: if it appreciated, it appreciated for her; if it depreciated, it depreciated for her. These properties enter with her and leave with her.
The kesubah - Her contractual payment, which includes the main kesubah (two hundred zuz), and if there is one, also a kesubah addition, which is an additional obligation. For the purpose of our Mishnah, we will assume there is no addition here.
The question is therefore whether her children or his children are entitled to each of these three types of property, and on this Beis Shammai and Beis Hillel disagree.
The text of the Mishnah:
"Nafal habayis alav veal ishto" - the couple died together in the house and it is unknown which of them died first. Therefore, both sides come forward with their claims:
The husband's heirs claim: The wife died first, and in such a case our father inherited everything; and since our father died after her, everything that was hers now comes into our hands.
The wife's heirs claim: The husband died first, and it turns out that when our mother died she had no husband, and there are no heirs but us, and everything is ours.
The view of Beis Shammai:
Beis Shammai say "Yachaloku" - Everything is divided between the two claimants. Their reasoning is that the claims are balanced, both regarding the nichsei tzon barzel and the properties that enter and leave with her: On one hand, the apartment is registered in his name, and on the other hand, he guaranteed her an ironclad promise for the sum he committed to; and similarly, the orchard is indeed registered in her name, but he had the right to enjoy its produce throughout their marriage. There is therefore no clear possessor here, but rather both are possessors to a certain degree, and in the absence of a decision as to who owns the properties - they divide them equally.
As for the kesubah, there seemingly is a clear possessor here: the husband. After all, the two hundred zuz are sitting in his pocket, and they are only paid when the kesubah comes to be collected, meaning if he died before her or divorced her. When her children come to collect the kesubah, they are extracting money from him, and the burden of proof rests on the one extracting from his fellow. His heirs will therefore say: Bring proof that our father died first and that the obligation to pay the kesubah took effect, and then we will pay; and without this - no, since he is the possessor. However, as was explained in the previous Mishnah, Beis Shammai maintain that one who holds a promissory note in their hand, and a kesubah is included in this, is like someone who has already collected and is considered the possessor of the money. Therefore, the kesubah places the woman on equal standing with the husband, and she is considered in possession of those two hundred zuz just like him, and so here too, they divide them equally.
The approach of Beis Hillel:
"Uveis Hillel omerim: nechasim bechezkasan" - They do not accept the ruling of "yachaloku", but rather the properties remain in the possession of whoever is the current possessor. Even though this is not stated explicitly, it is clear from the continuation of the Mishnah that the reference is to the first category, nichsei tzon barzel, meaning the apartment that she brought into the marriage and is now registered in his name.
According to the approach of the Bartenura, it is unclear which of the sides is intended, and there are two possibilities in the matter: Either the properties pass to his side of the family, since they are registered in his name and he is the possessor; or they pass to her side, since they are nichsei tzon barzel, and she was promised the full amount. For if on the day of the marriage the apartment was worth eight hundred thousand and he committed to a million for her, his balance is negative, and she is the primary claimant and the true possessor. It turns out that both have claims: On one hand, the property is in his name, and on the other hand, she has a sort of priority right over everything. Since it is not known to whom it belongs, the Bartenura concludes that they divide it between the two of them.
It is worth delving into the details here. The Gemara brings three opinions in explaining the approach of Beis Hillel:
Rabbi Yochanan: The possessor is his side of the family.
Rabbi Elazar: The possessor is her side of the family.
Bar Kappara: The intention of Beis Hillel is that they divide it between them, even though this is a somewhat forced reading of the Mishnah's language.
What is interesting is that the Bartenura's words do not align even with the opinion of Bar Kappara, but rather sound almost like a fourth approach: Since it is unknown to whom to give it - they divide it half and half. Even though this is somewhat perplexing, this is what he wrote, and this is how the halachah was ruled: Nichsei tzon barzel are divided between the two sides, meaning he takes the apartment and her heirs take half of the promised sum.
The continuation of the words of Beis Hillel regarding the remaining two types of properties:
"Uchesubah bechezkas yorshei haba'al" - His side of the family keeps the two hundred zuz and pays nothing, as they are the undisputed possessors of it. Beis Shammai reasoned that the very holding of the kesubah document makes its owner the possessor, whereas Beis Hillel do not hold this view.
"Nechasim hanichnasim veyotzim imah bechezkas yorshei ha'av" - The melog properties belong to her side of the family, because they were always registered in her name. The orchard that she brought in remains the estate of her family, and therefore her family is the possessor and retains it in their hands. The "father's heirs" mentioned here are, despite the somewhat puzzling phrasing, her own father, meaning her side of the family.
In summary: The halachah follows Beis Hillel, and therefore in this case the nichsei tzon barzel are divided half and half, the kesubah is not paid at all and remains in the hands of the husband's heirs, and the melog properties - the properties that enter and leave with her - pass to her side of the family.