Kesubos, chapter nine, mishnah 2. Before we turn to the words of the mishnah, we need to introduce a fundamental rule that was in force in the time of the Gemara, and which was later changed by an enactment of the Geonim after the sealing of the Talmud.
The rule in the time of the Gemara:
"Metaltelei d'yasmei lo mishtabdei l'baal chov" - movable property that orphans inherited from their father is not mortgaged to their father's creditor. Someone who was owed money by the deceased and comes to collect from the estate collects from the land only, and does not collect from the movable property. The same applies to a woman who comes to collect her kesubah from the estate: she too collects from the land only.
Our mishnah deals with a situation in which there is room to collect even from movable property, both for a creditor and for a woman collecting her kesubah, and this is because the movable property is not in the possession of the heirs, that is, it is not in their direct ownership and actual control.
The words of the mishnah:
"Mi shemes v'hiniach ishah u'vaal chov v'yorshim, v'hayah lo pikadon o milveh b'yad acheirim" - a man died and left behind three parties with claims on his property:
A wife - who is owed her kesubah.
A creditor - someone to whom the deceased owed money.
Heirs - the orphans who inherit the estate.
That deceased man had deposited an object with someone else, or had lent money to a third party. It turns out that a third party is holding money or an object belonging to the estate - not land but movable property - and since it is not in the possession of the heirs, there is room to consider giving it to the creditor or to the wife.
Rabbi Tarfon:
"Yinasnu l'koshel shebahem" - they should be given to the weakest among them. Who is this "weak" one? The Gemara records two opinions on the matter:
The one whose power of collection is weakest - and Rashi explains that this is the one whose ability to collect from purchasers, from those people who bought land from the deceased, is less than that of the others. Generally speaking, a creditor, or a woman collecting her kesubah, when the estate has no unencumbered property from which to collect, may seize even property that was sold, provided that it was sold after their lien took effect, that is, after the loan was made or after the woman was married. It follows that whoever's lien took effect last has the fewest sold properties available to seize. If the creditor's loan was made last, he is the weak one, since he can collect only from what was sold after his loan; and if the marriage took place last, the wife is the one with the weakest claim.
The woman's kesubah always - the woman is always considered the weakest among them, because it is not her way to go around searching out the land belonging to the estate.
In any event, what emerges from Rabbi Tarfon's words is that movable property and money that were part of the estate, when they are in the hands of a third party, do not necessarily go to the heirs.
Rabbi Akiva:
Rabbi Akiva disagrees and says: "Ein merachamin b'din, ela yinasnu l'yorshim" - there is no place for mercy in a case of this sort, and we do not take into account the weakness of the weaker party; the money is given to the heirs. And his reason is: "shekulan tzrichin shevuah v'ein hayorshim tzrichin shevuah" - all those who come to collect from the estate, the creditor and the woman collecting her kesubah, must swear to the heirs that they have not been paid; whereas the heirs are not required to swear to anyone in order to receive their inheritance. Since this is so, the money falls to the party who requires no oath, since its connection to him is more natural and better established.
In summary: in this mishnah we learned that even though the movable property of orphans is not mortgaged to a creditor or to a woman's kesubah, when the deposit or the loan is in the hands of others and is not in the possession of the heirs, the Tannaim disagree: according to Rabbi Tarfon it is given to the weakest among them - to the one whose claim is weakest with regard to collecting from purchasers, or to the woman, since it is not her way to go around searching out land; and according to Rabbi Akiva there is no mercy in judgment, and therefore it is given to the heirs, who require no oath, while the other claimants must swear.