Rava said: We can deduce from Rav Huna's ruling (that we appoint strangers, but not relatives, to care for a minor's property) that "presumptive ownership" of a minor's property is not acquired, even after the child has reached the age of majority.
[Presumptive ownership is one manifestation of the halakhic principle of "hazaka" (presumption). Anyone who occupies or uses real property for three years without any objection by others is presumed to be the owner. A relative cannot be placed in control of a minor's property, lest he claim that he has a share in the inheritance. Rav Huna insists that only a non-relative can be put in charge allowed to care for a minor's land because a non-relative cannot claim any rights to a minor's property.
Normally, undisturbed and uncontested occupation and use of land for a three-year period grants the occupier presumptive possession of it. Howvever, a minor would not be able to protest the custodial non-relative's use of the property. Even possession after the minor reaches the age of majority cannot establish ownership; he may well have believed the non-relative's claim that he had purchased the property from his late father, and therefore never protested. Thus, Rav Huna's decision to permit only the appointment of non-relatives implies that uncontested possession cannot establish ownership of a minor's property.]
[An attempt is made to narrow the scope of Rav Huna's ruling:] We have said that [Rav Huna's decision that a relative cannot be appointed] applies only to paternal brothers [who might make a claim of joint inheritance], but we are not concerned about maternal brothers [who could not make such a claim, since the chain of inheritance is only through the paternal side]. And even in the case of paternal brothers, we do not say this except for fields; with houses, we are not concerned [because the child's inheritance of houses is known to neighbors, so that false claims could not be sustained].
And even with regard to fields, we say this only if there was no written will [defining the division of the inherited property]; if there was a written will, it has a voice [i.e., the partition of the property was widely known, and no false claim could be successfuly filed].
[The gemara objects:] But this is not the case. There is no difference between maternal and paternal brothers, and no difference between field and houses, and no difference whether or not there was a written will: We do not allow [a relative to care for a minor's property].
There was an old woman who had three daughters. She and one of her daughters were captured. One of the remaining two daughtrs died, leaving a young son. [Presumably, none were married at the time.]
Abbaye said: What shall we do? Should we place the property in the care of her (the deceased daughter's) sister? But perhaps the old woman has died, and we do not place a relative in charge of a minor's property. [If the grandmother died, the grandson would inherit his mother's portion of the estate.] Should we place his (the child's presumptive share of the) property in charge of the child? But perhaps the old woman did not die, and we do not place a captive's property in the care of a minor.
Abbaye therefore said: We give half of the property to the remaining sister to care for, and we appoint an administrator for the child to care for the other half. Rava said: Since we appoint an administrator for one half, we appoint an administrator for the other half.
Eventually, they heard that the older woman had died. Abbaye said: We give one third to the (uncaptured) sister [that much is certainly her's regardless of the fate of the captured sister], and one third goes to the minor [who clearly inherits that much through his late mother]. And the other third -- a sixth (i.e., one half of the remaining third, that would be the captured sister's if she survives, and hers to inherit if her sister dies) we give to the uncaptured sister (to care for) and we appoint an administrator (in place of the boy, to care for) the other sixth. Rava said: Since we appoint an administrator for the one sixth, we appoint an administrator for the other sixth. [According to Rava, An administrator is appointed to look after the entire third of property that was inherited by the captured sister, as long as it can be presumed that she is still alive.]
[The gemara now relates another case of disputed inheritance. Rashi describes the background: A man named Mari traveled with his father to the town of Bei Chozai, where the father remarried and had another son. After the father's death, Mari returned to his home town, where his late father owned property, and took possession of the property. Then, the son from Bei Chozai came ...]
A brother came to Mari bar Isak in Bei Chozai. He said (to Mari): Give me my half (of the property). He (Mari) said: I do not know who you are! He (the brother) came before Rav Hisda, and he (Rav Hisda) said: He (Mari) answered you appropriately. For it says (Gen 42:8, describing Joseph's reunion with his brothers) "And Joseph recognized his brothers, but they did not recognize him." This teaches that he (Joseph) left his brothers when he did not have a full beard, and he now appeared with a full beard [which is why they did not recognize him -- just as Mari did not recognize his brother with a beard].
He (Rav Hisda) said (to the brother): Go bring witnesses that you are his brother. He (the brother) said: I have witnesses, but they are afraid of him because he is a powerful man.
He (Rav Hisda) said to him (to Mari himself, not to the brother): Bring witnesses that he is _not_ your brother. He (Mari) said to him (Rav Hisda): Is this the law? [What about the principle that] one who wants to extract payment must bring the evidence?!
He (Rav Hisda) said to him (Mari): This is how I rule in your case and that of and your powerful friends. [Rav Hisda's ruling was that if potential witnesses for the claimant might be intimidated, then the defendant must bring the witnesses, even though this is not the general procedure.]
He (Mari) said to him (Rav Hisda): Either way, the witnesses will come and not testify [truthfully]. [If I am so intimidating, they will not testify against me in any event.]
He (Rav Hisda) said to him (Mari): They will not commit two (transgressions). [They may refuse to testify, but they will not be silent about the truth _and_ testify untruthfully. Hameiri: "It is a commom that many people will avoid testifying about what they know, but it is not common that they would commit perjury."]
Finally, witnesses came and testified that he was the brother. He (the brother) said: Give me a share of the vineyards and orchards that he (Mari) had planted. [Rashi: the brother wanted a share of the improvements that Mari had made.]
He (Rav Hisda) said to him (Mari): His request is appropriate, for we learned in a mishna (Baba Batra 143b): If a man left property to adult and minor sons, and the adult sons improved the property, they improved it for the estate [i.e. for all the heirs]. And similarly, Rabbah said that the improvements were for the estate.
[Rashi is disturbed by R. Hisda citing Rabbah, who was his junior, and emends "Rabbah" to "Rav", who preceded R. Hisda. According to the Tosaphot, Rabbah is not being cited by R. Hisda, but by the Gemara. It is merely being recording that he held the same opinion as Rav Hisda, and may have made the same ruling subsequently in a similar case.]
Abbaye said to him [to Rav Hisda, according to Rashi, but is unreasonable that Abbaye would challenge a ruling of Rav Hisda, his elder by two generations. According to Tosaphot, the question was addressed by Abbaye to his teacher, Rabbah, when they were discussing this issue.]: Are the cases comparable? There (in the mishna) the adult sons know of the minor sons, and thus [implicitly] waive their rights [to the value of the appreciation]. Here [in the case of Mari] did he know [of the younger brother, so that we can assert] that he waived his rights?
The matter (Rav. Hisda's ruling) was discussed and came before R. Ami. He said: There are cases even more compelling than this [in which we might not want to compensate the caretaker], yet the Rabbis said that we evaluate them as sharecroppers! [The other case is that of the caretaker administering the captive's property. When the captive returns, he must return the property, but is recompensed like a sharecropper for the value of the improvements that he has made.] Here [in the case of Mari], should we not give him [the value of his improvements]?
The students reported this to Rav Hisda. He said: Are the cases comparable? There [the case of the captive's property] he entered with permission of the court, but here [in the case of Mari], he entered without permission. Furthermore, the brother was a minor, and we do not place a relative in charge of a minor's property. [Rav Hisda is thus arguing that Mari should be forced to share the improvements with his brother.]
The students reported this to R. Ami. He (R. Ami) said: You didn't tell me the entire story, that he (the brother) was a minor. [If I had known that, I would not agreed with Rav Hisda that Mari must share the improvements with his brother.]
[We end at the first mishna on 40a.]
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