II. Discussion of Legal Position of Daughter in Ancient Eastern Legal Systems Egypt

Evidence from legal code and documents

There are two types of evidence for Ancient Egyptian rules of inher­itance: more or less direct evidence for rules from legal codes or legal manuals, and indirect evidence for rules deduced from their application in wills, testaments, and other instruments, as well as from patterns of succession to office and divisions of property.

The rules for inheritance found in the Legal Code or Manual of Her- mopolis make a distinction between inheritance with and without a will. For it says: ‘in case a man dies... having not written shares for his children...'^[630] This makes it clear that it was possible to make a will and thereby change the shares that the rules of law that are to follow deter- mine.^[631] Wills were made to deviate from the law of intestate succession, for example when a large estate was at stake.

In the instance where a man did not write shares for his children it is described that it is the eldest son who gains possession of the inheri­tance, unless the other children demand their shares. Then the eldest son has to write out all the names of the children that have a claim to the inheritance.^[632] When a child dies before having received his share, his eldest son takes his place. If he does not have a son, the eldest son (i.e.

The child who initially gained possession of the inheritance was clearly the eldest son. But it is not self-evident that this means that only sons inherited. The role of temporary possessor of the estate and also divider of it is granted to the eldest son, but all children, whether male or female, can receive shares.^[636] It is also clear that all children can receive shares from either their father or their mother. This means that the chil­dren always inherit the estate of their parents, regardless of their or the parents' sex.

There is a specific passage devoted to the case where a man dies hav­ing a daughter (or daughters), but no son.^[637] There the eldest daughter acquires the rights of the eldest son in receiving two shares of the inheri­tance, but it is determined that she does not have the right of the eldest son to inherit the shares of predeceased children. This means that the daughter is not equal to the son in that respect.^[638] That a female child was not considered equal to a male in general, can be seen in the remark where it is determined that when a man first begets a daughter and then a son, the son will be considered to be the eldest son.^[639] In general one can say that always as soon as there is a male child, no matter whether he is firstborn or not, he acts as the eldest son, who manages the property until the other children demand division of it. He can also take the extra share, when appropriate.

The Demotic legal documents from Egypt bear out the same: children inherit their parents' estate, sons and daughters alike. It appears from both literary sources and legal texts that remarriage of a parent was con­sidered a serious threat for the claims of the children from the first mar­riage.^[640] After the marriage they had to share the inheritance with children born from the second marriage.^[641] It is obvious, however, that the chil­dren are considered entitled to their share, even while their parent is still alive. This means that often measures are taken to make sure that a child will receive something of his paternal property. Because there are a great number of variations in the texts it is difficult to determine what kind of division was made when the deceased had made no arrangements at all. Pestman has enumerated a number of cases in which it seems that one of the heirs does not receive anything (is perhaps disinherited) while evidence from other papyri shows that the heir concerned did receive something (for instance because he was bought out).^[642] In a case of a son and a daughter the son seems to inherit his father's estate as he sells a house that is part of the estate without intervention of his sister. Nevertheless, another document shows that the daughter had received her share.^[643] For the present investigation it is important to note those instances referred to by Pestman where daughters receive some of the paternal estate upon their marriage and consequently relinquish their claims to the estate that are based on succession.^[644] Pestman also observed that where daughters appear to receive less substantial shares than sons this may be due to the fact that they received property upon marriage (thus that this property together with what they received upon their father's death made up their intestate inheritance share).^[645] This indicates that even though daughters inherited on equal basis with sons there was a relation with marriage as the property they received then was viewed either as their share or as part of their share.

An interesting case with respect to P.Yadin 20 is P.Louvre 2430 where the children of two deceased sons divide the inheritance of the grand­father. For one son a son acts as his heir, for the other son his four daughters. This makes it clear that under Egyptian law the daughters of a deceased son-heir could act as heirs in his stead. As I discussed above, this is not clear in P.Yadin 20. There Shelamzion can be acting as heir of her father Judah, in a conflict with the heirs of her father's brother, which would present us with the same situation as in P.Louvre 2430, but her right could also be challenged by the brother's sons as heirs of her father's estate. I have mentioned above that the combination with evi­dence from P.Yadin 23-24 suggests that the orphans of the brother were indeed Judah's heirs. In that case P.Yadin 20 has to be read as a conflict between the legal heirs of a deceased and his daughter, who is apparently not his heir. This would present us with a completely different situation than the one found under Egyptian law.

Conclusions

Under Egyptian law both sons and daughters inherit the paternal estate. Their position on the basis of succession appears to be equal, except for some privileges of the eldest son: when first a daughter is born and then a son, the son is regarded eldest son and the eldest son inherits the shares of his siblings who die without children (whether before or after the division of the inheritance), while the eldest daughter does not.

From documents it appears that daughters indeed shared the estate with sons; in some cases where they seem to be excluded they did receive a share by some kind of arrangement. This arrangement was obviously not meant to create a right to the share (that right was based on intestate succession), but to pay the share to the daughter by some other means.

Where the daughter's share is related to a portion received upon mar­riage (whether this portion makes up the entire share or part of it) there could be a link between marriage and succession as assumed for the Judaean Desert documents and to be discussed for other legal systems below.

Mesopotamia

Under this heading I will treat early Mesopotamian law (anterior to Hammurabi's Code), Old Babylonian law (Code of Hammurabi), with a few remarks on Neo-Babylonian law, and Assyrian law, covering Old, Middle and Neo-Assyrian law. I will also include a short excursus on Athenian law since it is mentioned in several commentaries on Old Baby­lonian law of succession, comparing Athenian and Biblical Jewish law.

Mesopotamian law anterior to Hammurabi’s Code

Between 1947 and 1952, three collections of laws were brought to light that contain legal material that is older than the Code of Hammurabi (of 1750 BCE): the Laws of Ur-nammu (2100 BCE), the Laws of Lipit- Eshtar (1930 BCE) and the Laws of Eshnunna (1770 BCE).^[647]

The Laws are comparable in content, that is, as far as the preserved text reveals. For example, the Laws of Ur-nammu and those of Eshnunna do not contain information about law of inheritance and succession. Our understanding of the contents of the legislation of Lipit-Eshtar suffers from substantial lacunae in the text, for example, a gap of 34 lines where a part about inheritance and succession probably began.^[648] What is still legible conveys the impression that children can inherit independently of their gender.^[649] However, whether this was true can immediately be questioned looking at another provision in the same text: ‘If the father is living, his daughter whether she be an entu, a nadltu or a hierodule, shall dwell in the house like an heir' or in another translation: ‘If dur­ing a father's lifetime his daughter becomes an ugbabtu, a nadltu or a qadistu, they (her brothers) shall divide the estate considering her as an equal heir.' Obviously, an unmarried daughter is concerned, as she is described as a priestess.^[650] According to the first translation, the priest­ess daughter dwells in her father's house like an heir, the other seems to denote that the moment she becomes a priestess she gains the status of heir alongside her brothers.

Of course one could question whether marital status was of foremost importance or rather the fact that she was a priestess. However, the implication of the fact that she was a priestess was that she was unmar­ried. This was the fact that really mattered: a daughter who was a priest­ess did inherit not because she was a priestess but because this status implied that she was unmarried. That way, her share in her father's estate would ultimately revert to her brothers. In that context it is important to note that classes of priestesses/temple attendants that were allowed to marry, were not allowed to bear children.^[651] From a legal point of view this meant that their share in the estate of their father would indeed revert to the brothers as the daughters would never have legal heirs of their own. Therefore, having a daughter who was priestess inherit would not damage the family property. This idea can be found in later Meso­potamian law as well, for example, in the Code of Hammurabi to be discussed below.

In addition to the law texts that are often fragmentary or do not reveal details about succession and inheritance at all, there are also documents from those early periods that explicitly mention the position of the daughter regarding her father's estate. A text from Gudea (Lagash; 2150 BCE), for example, declares that ‘in the house in which there is no son, the daughter enters into the position of heiress.'^[652] It is remarked though that ‘this declaration may well express the ideal aspirations of society' and that a daughter did not usually inherit even though she was appar­ently entitled to do so under this provision.'^[653]

Nevertheless, an Old Babylonian legal text from Nippur reads some­thing to the same effect: ‘If a man dies and he has no sons, his unmarried daughters shall become his heirs.'^[654] For the word heir the term ibila is used, interpreted as denoting only male heirs.^[655] The text thus expresses that a daughter is instituted in the position which normally only a son could hold. Contrary to the text cited above, this text explicitly men­tions the daughter's marital status: unmarried daughters become ibila, heir, implying that married daughters do not. This link between marital status and inheritance rights could also be at the heart of a legal case recorded in a document from the Ur III period, concerning the dis­inheritance of an adopted daughter at her marriage.^[656] A man adopted two girls and made them his legal heirs (ibila). When one of them was about to marry a certain Nibaba she was disinherited. Ben-Barak sug­gested that the disinheritance might concern ‘a declaration that Nibaba had no intention of joining the family of the bride.'^[657] Following this suggestion, the situation implies that disinheritance followed when the adopted father realized that his property would pass out of his family. This is often the reason behind arrangements for daughters as heirs. For this reason, marriage is so essential in this respect. Only if the marriage ensures that the property will stay within the family does it not change the position of the daughter towards her father's estate.

This contrasts with the statement at the end of an Old Babylonian letter from Sippar: “There is no right to inheritance for daughters in Sippar, be they the eldest or not.”^[658]

Indeed, this remark which seems to altogether exclude the daughter as heir seems to deviate strongly from the positions assumed above. How­ever, I think that the addition ‘be they the eldest or not' could imply that the remark sees to a situation where there are sons.^[659] The rule would then express that even if a daughter is the firstborn child, she cannot inherit. In that case the remark does not necessarily denote that a daughter could not inherit if there were no sons.

In general it seems that daughters could inherit if there were no male descendants, while in one instance it is specifically determined that this provision applies to unmarried daughters. The Ur III document about the disinheritance of the adopted daughter at her marriage shows that the choice of a marriage candidate was vital for a daughter who was heir. Ben-Barak has even concluded that ‘according to the Ur III document the daughter was obliged to marry someone with a certain affinity to her father.'^[660] Such an obligation would obviously be aimed at securing the family property and would thus come close to the arrangement found in Num 36. A clear link existed between marital status or future marriage and the position of the daughter as possible heir to her father's estate in the absence of sons.

Old Babylonian law

The matter of succession in Babylonian law is rather complicated as the Code of Hammurabi^[661] does not give clear rules on the order of succession.

The Laws deal only with certain special cases of succession and give no statement of the general law which has to be discovered by inference from isolated provisions and from the documents which deal with the division of property at death.^[662]

The position of daughters is especially difficult to determine as there seems to be contradictory evidence and developments might have occurred over time.

The most important point for the whole discussion is the question of whether maru, the word used in the Laws to denote the heirs, can only refer to males or can include females as well.^[663] Driver and Miles produced an extensive excursus on the subject, referring to instances where inclusion of daughters indeed seems likely.^[664] In documents it could in any case occur that daughters were designated by the word maru. However, it is important to note that in the Laws the only right to inherit her father's estate clearly granted to a daughter is granted to an unmarried priestess.^[665] The idea behind this was obviously that in such a case the woman would not have children of her own and that the property would therefore revert to the family (her brothers and their children) after her death. This shows that the position of daughters with respect to their father's estate concerned considerations of keeping the family property within the family. If it was guaranteed that the property would revert into the family the daughter was entitled to inherit along­side her brothers. This suggests a link between the daughter's right to inherit part of her father's estate and her marital status comparable to the one suggested above with regard to the Judaean Desert documents.

‘The Laws do not refer to the case where a man has no sons.'^[666] This is a bit unexpected since we have seen in the older material that several references are made to a situation where a man dies leaving no sons, for example in the statue from Gudea (Lagash) and the Old Babylonian documents from Nippur, discussed above. One can assume that this idea of the (unmarried) daughter inheriting if there were no sons was accepted and practiced.^[667] Nevertheless, the Laws do not refer explicitly to this case. The only thing that is determined is, as mentioned above, that the unmarried daughter inherits alongside her brothers. One could argue, a fortiori, that this would be expected even more so if there were no brothers.

I note, though, that in the Laws it is determined that the unmarried daughter is priestess, while this is not determined in the (older) docu­ment from Nippur. Nevertheless, it is important to note that in both cases the daughters are required to be unmarried. Apparently, marital status was important in determining whether a daughter could be heir or not. The fact that a daughter is priestess determines that she will remain unmarried, while the document from Nippur does not make any demands on that point.^[668] In this respect, I think it is interesting to recall the example of the disinheritance of an adopted daughter fol­lowing her marriage, discussed above.^[669] If a daughter was made heir and subsequently married, this could cause problems. This realization could be at the heart of the rule laid down in the Laws which only gives a share in the estate to the priestess, that is, the unmarried daughter who remains unmarried. Comparing the older evidence with the rule in the Laws, one gets the impression that the position of the daughter changed in that unmarried daughters-priestesses could inherit in any case, even alongside their brothers, because they would remain unmarried and their share would always eventually revert to their own family. This implies that unmarried daughters that would not stay that way would not have a right to inherit, in any case, not alongside their brothers. It is obvious that married daughters would have no rights to the inheritance whatsoever.

Driver and Miles mention the implication of some documents that daughters inherited if there were no sons: ‘in the documents property is occasionally divided between daughters alone, in which case it may be that they inherit in default of sons.'^[670] The question is, however, whether they inherit in default of sons or simply inherit as children of the deceased. To put it differently, did all children inherit regardless of their sex and did daughters in absence of sons inherit as such, or did sons inherit and could daughters only inherit in default of sons? I do not think the material is conclusive in that respect. On the one hand, the Laws only determine that daughters who are unmarried priestesses can inherit alongside their brothers. As mentioned above this resulted in reversion of the property to the sons/brothers after the woman's death. Therefore, this way of allowing a daughter to inherit cannot be taken to apply to other daughters as well: indeed, the concept behind it would go against this. Therefore, it seems likely that the Laws started from the assumption that only sons inherited and daughters could inherit if they were unmarried priestesses. Further support for the idea can be found in my opinion in the arrangements in the Laws that sons who inherit have to provide their sisters with a husband and a dowry.^[671] This would come down to a share in the father's estate anyway.^[672] Precisely because an unmarried priestess could not benefit from this arrangement, she would inherit a share of her own at her father's death.

While the Laws seem to restrict the right of a daughter to inherit part of her father's estate to the unmarried daughter-priestess, the documen­tary evidence is not so univocal. Daughters did receive a part of their father's inheritance designated as their share, but it is not clear what this share encompassed, thus whether it was equal to the share of the brother(s). In some cases, where the daughter is said to take part in the division, it is clear that her share is granted to her on the basis of inheri- tance/succession. Driver and Miles mention the example of a daughter who shares with her brother ‘whatever belongs to their father' and of two sisters who receive their share as ‘part of their father's estate.'^[673] In the latter instance Driver and Miles point out that the sisters could be heirs in default of male children. Of course this does not apply to the first example. Therefore, we cannot be sure whether the sisters would not have inherited a share, had there been a brother.

What is significant about the examples Driver and Miles give is that the daughters concerned are all unmarried. It is not clear though whether they were all priestesses as well. If they were, they would inherit on the basis of the rule given in the Laws that allowed a daughter who was an unmarried priestess a share in her father's estate alongside her brothers. Driver and Miles remark that if not all women were priestesses there could be a link with seriktum, dowry.^[674] As long as a daughter had not received a dowry yet, she could inherit a share in her father's estate. Driver and Miles suggest that the daughter could benefit from this share, while it was managed by her brothers. The property thus stayed within their control. The question they do not raise, however, is what the status was of a married daughter. From the evidence as it can be inferred both from the Laws and the documents I get the impression that married daughters did not inherit. The Laws only mention the unmarried priest­ess, the documents concern daughters who are not married. This would effectively mean that the daughter's position towards her father's estate changed upon marriage. Before her marriage, she was entitled to a share in the estate and after her marriage obviously no longer. I think this is very important for our understanding of the Judaean Desert docu­ments. Could it be that there as well succession rights for daughters were related to marital status? In both the Babatha and the Salome Komaise archive, the daughters concerned are married when their father dies. In fact, they are all married when gifts are made to them providing them with some of their father's property. This makes it likely that the reason for providing them with a gift was not a desire to change the conse­quences of the law of succession as such, but to counterbalance a change on the basis of this law of succession at that specific moment, i.e. in con­nection with marriage. The situation in Babylonian law suggests that a daughter's position towards her father's estate was indeed linked with her marital status.

Excursus: the daughter-heir in Athenian law

In their discussion of Babylonian inheritance law, Driver and Miles also mentioned the possibility of succession by brothers of the deceased, if the deceased had left no descendant at all (whether male or female).^[675] They mention Jewish law as showing a preference for the brother as heir if there were no descendants of the deceased. They also refer to the mar­riage rule of Num 36, explaining that a daughter had to marry a man of her own tribe to keep the property together. Then they refer to ancient Athenian law as similar to Jewish law in the preference for male heirs. The daughter does not have any right of inheritance if she has brothers. If a man dies leaving only a daughter behind, the daughter functions as eniKXppoq, daughter-heir. She is married off to ‘a near agnatic relative to whose son by her the inheritance passed at his majority.’^[676]

The term used for this daughter should not be translated with ‘heir­ess’ since it is obvious from the arrangements concerning her position that she is not really an heiress at all.^[677] She does not actually inherit but is considered as keeping the property with her, that is, until a real heir is available. At the death of their father she becomes ‘adjudicable’ by the nearest male relative of her father, to whom she is married off with the prospect of producing a son to maintain the father’s estate.^[678] This explains why the daughter-heir should really not be regarded as an heir at all: the property does not really become hers but she ‘stands in, as it were, for her non-existent brother until she has produced a son.’^[679] Since the Athenian system recognised adoption as a way for a man to provide his estate with an heir, it would have been common that a man who had only a daughter made the husband of his daughter into his son and thus heir by way of adoption.

The question is, of course, what happened if a man died having only a daughter, who was married to a man who had not been made into the father's legal heir. At the death of the father, the daughter inevitably became daughter-heir and adjudicable as described above. A passage in Isaios (a Greek orator, 420-350) suggests that a daughter-heir who was already married nevertheless passes ‘into the legal control of their next-of-kin.'^[680] Isaios then adds: ‘Indeed it has frequently happened that husbands have thus been deprived of their wives.'^[681] This makes it clear that in such a case indeed the daughter's marriage was ended to enable the marriage with the next-of-kin, required by law.

The arrangements in Athenian law outlined above make it clear that there was a strong preference for inheritance by males, even going so far as to require the daughter who inherited in absence of sons to marry her father's next-of-kin to bear an heir for his estate. This arrangement seems to resemble the rule found in Num 36, where daughters who inherit in the absence of sons are required to marry someone of their father's tribe. Indeed, the rules are discussed by Driver and Miles as ‘similar.'^[682] However, I think the rules are fundamentally different. The Athenian rule only determines something for the moment the father died: at that moment a daughter becomes daughter-heir and is adjudicable. Before that time nothing regarding the order of succession is determined. I think this has to do with the possibility of adoption in the Athenian system: a man could make his son-in-law his son and thereby his heir. This meant that a daughter was not required to marry someone of her father's family in all cases. In fact she was free to marry whomever she wanted, and there could only occur a problem if her father died without a (natural or adopted) son. Thus marriage did not change her position: if she remained the only child and her father did not adopt her husband as his heir, she would automatically become daughter-heir and be married off to the nearest male relative of her father.

The Biblical requirement worked in a completely different way: it determined that daughters who were (likely to be) heirs were only allowed to marry someone of their father's tribe. Since the Bible did not know adoption, the family property could only be kept in the family by relationships with family members with whom a real blood tie existed. Therefore, it would be possible in that context that a daughter's position towards her father's estate changed upon her marriage. If she married someone who was not related to her father's family, it was from that moment on clear that she could not be her father's heir. Regardless of what would happen next, her position had already changed. Therefore, gifts to counterbalance that effect might have been required.

Despite this crucial difference, the comparison with the Athenian rules is important because it shows, again, that a daughter's marriage was linked with matters of succession and inheritance. The cases of both Babylonian and Athenian law show that it is not odd to assume that a daughter had certain rights to her father's estate as long as she was unmarried, or provided she married the right person. In all cases, arrangements were aimed at keeping the family property within the family.

Assyrian laws

Three periods can be distinguished: Old Assyrian (early second millen­nium), Middle Assyrian (around 1200-1000 BCE) and Neo-Assyrian (1000-617). Of these periods only the second has yielded a real corpus of law, the Middle Assyrian Laws, while the others provide documen­tary evidence in the form of thousands of texts of which many ‘qualify as sources of law.'^[683]

a. Old Assyrian

No law code has been found but from some quotes and references in let­ters and verdicts, which refer to “words written on the stela” we know that laws existed and had been published.^[684]

The evidence for legal practice and procedure is mainly found in admin­istrative orders, judicial records and private legal documents.

Our knowledge of inheritance law is based on a few testaments and scat­tered references in letters and records. The relationship of the testaments to traditional law is difficult to discern: they may, for example, have ame­liorated the entitlements of women.^[685]

This latter observation is important, since records show that daughters received a share alongside their brothers. It is not clear whether this happened based on intestate succession or on a will; consequently, the records do not provide any evidence on the position of the daughter in the order of intestate succession. This means that we cannot decide whether daughters had the right to inherit based on law. To me the evi­dence suggests they did not: for example, a daughter who is heir requests to see the will of her father, which could suggest that she expects to find her share recorded there and not so much given by law.^[686] This would mean that a daughter's position was not necessarily safeguarded in rules of intestate succession. Regarding this matter, it is noteworthy that a daughter who is a priestess and thus unmarried receives additional items (a bigger share?). Veenhof seems to relate the receipt of some­thing extra to the position of the woman as unmarried, i.e. independent: ‘Frequently the (eldest?) daughter, who had become a priestess (ugbab- tum) and thus was unmarried and had to live independently, received additional items.'^[687] It could be, however, that the special position of the unmarried daughter was related to considerations of protecting the family property: money given to an unmarried daughter would eventu­ally revert to the family. If Veenhof's suggestion is true that the unmar­ried daughter was often the eldest daughter, this idea would make even more sense: the eldest daughter could take the first share, after the eldest son, before the other children, and consequently, a certain part of the estate would be entrusted to a daughter whose position ensured that the property would eventually revert to the family. But even if the daughter concerned was not necessarily the eldest, the arrangements still show that the position of a daughter towards her father's estate was related to marital status.

b. Middle Assyrian

The main sources of law for this period are the so-called Middle Assyr­ian Laws, preserved on three clay tablets.^[688] They represent what was not the law of Assur but of an Assyrian colony in Asia Minor.^[689] The tab­lets date from the twelfth century BCE, but the laws contained on them may date back to the fifteenth century BCE. They have probably been influenced both by Babylonian and Sumerian law. Although they are quite extensive and offer material for comparison with other laws, there are no rules on succession of daughters. From a regulation on tablet A it could be inferred that ‘in intestate succession, the heirs are ranked in the following order: son of deceased, then his undivided brothers.'^[690] Driver and Miles concluded that the Assyrian laws were stricter than the Babylonian ones in this respect, not allowing a daughter part in her father's estate.^[691] They add: ‘although her seriktum may be regarded as a satisfaction for her share of it.'^[692] I take this to come close to what the Babylonian laws convey: a married daughter has received a seriktum and therefore does not inherit a share in her father's estate. The unmar­ried daughter still living in her father's house (i.e. waiting for marriage) will be provided with a seriktum by her brothers, which will then serve as her share in her father's estate. This does not mean that she is an heir, however, as the brothers are heirs, with the obligation of providing their sister(s) with a seriktum. In the Babylonian laws it is then determined that only the unmarried daughter who is priestess (i.e. will not marry at all) can inherit alongside her brothers (be a real heir). We do not find any reference to this latter situation in the Assyrian laws. This means that we cannot be sure that this specific link with marriage existed there. Nevertheless, the relationship with seriktum does suggest that a daugh­ter's position towards her father's estate was indeed related to her mari­tal status.

From the documents it can be gathered that daughters sometimes ‘inherited on an equal basis with their brothers (OBT 105:8-10) or were the object of special provisions (OBT 2037).'^[693] It should be noted that OBT 105 is clearly a will; consequently, it does not say anything about the position of daughters under the law of succession.^[694] One could even argue that the fact that wills in favour of daughters were made suggests that the daughter would not inherit by law of succession, certainly not if she had brothers.

The ‘special provisions' concern a specific designation of property that will be the daughter's, consisting of both movables and immovables. Concerning the immovables (a house), it is determined that after her death it will be her sons', but if she never begets any sons, the property will pass to the sons of the testator.^[695] This indicates that the testator had sons and that he made the provisions for his daughter to grant her a share in his estate. This suggests that daughters did not automatically inherit: they were not heirs based on intestate succession. Indeed, the sons are obviously the favoured heirs, as it is determined that in the event of the daughter dying without heirs the property will revert to the original heirs, the deceased's sons. This indicates that giving a share to a daughter, at least a share in immovables, was only done on the condition that it would pass to her sons. These were obviously seen as continuing the testator's family.^[696] The persons who would have inher­ited if the daughter had not (the ‘original' heirs) are the beneficiaries of the arrangement if the daughter died without having sons. We have seen in the rule in Num 36 as well, that the rule there was made to protect the interests of the ‘original' heirs, the father's brothers.

c. Neo-Assyrian

As mentioned above, like the Old-Assyrian period, the Neo-Assyrian period has not left us a collection of laws. Although many excavations were conducted at various sites (of archives and libraries), not even one fragment of a law collection was ever found. Documents from the period do not refer to a law collection either, which is remarkable con­sidering their familiarity with the older collections, of which copies have been found in Neo-Assyrian libraries.^[697] This means that documentary evidence (private legal documents, royal decrees and letters) is the most important source for information on legal practice and procedure in this period.

What is in my opinion striking about the evidence regarding inheri­tance is that the position of sons and daughters seems to have become more defined. Sons divide the inheritance between them, in general in equal shares.^[698] If a father wants to deviate from this he can make a gift of the property he wants to bestow on a particular son. The rest of his estate will be divided amongst the other children.^[699] This principle of favour­ing one heir over the others was already known from earlier periods, but probably gained more importance as the shares became, in general, equal. Daughters seem to have been favoured by gifts, like wives. Pre­cisely these two categories are found as donees in the Judaean Desert documents.^[700]

There might have been a development in the position of the wife as the Old-Assyrian evidence seems to show that the widow inherited a house and some money while the Middle Assyrian evidence does not allow her a share in her husband's estate, but has her sons support her, that is, ‘if her husband has assigned her nothing in writing.'^[701] This latter phrase probably referred to a gift. This meant that a wife either received a gift from her husband to maintain herself after his death, or if such a provision was lacking she received maintenance from her sons (the heirs).^[702] The phrase referring to assigning one's wife something may have resulted in an increase of deeds of gift. In any case, it suggests that the wife was not entitled to a share in the inheritance based on succes­sion. The same could go for the daughter.

Nuzi

‘Some seven thousand tablets, from both official and illicit excava­tions at the sites of Yorghan Tepe (= ancient Nuzi), Kirkuk (= ancient Arraphe/al ilani), and Tell el-Fahhar (= ancient Kurruhanni), in a small region east of the Tigris and south of the lower Zab, provide the major documentary evidence for reconstructing the legal institutions and practice of northern Mesopotamia.'^[703] There are official and private documents, both of which refer to legislation like royal edicts, orders and proclamations. Something like a real code or a collection of law, however, has not been found. The material covers a period of about a century: 1450-1340 BCE.

The bulk of the material consists of private legal documents that cover all kinds of transactions. The documents related to inheritance and suc­cession mainly concern testaments, which means these documents will reveal nothing directly about the order of intestate succession. Never­theless, they could reveal what persons would not be heir according to that order since the testaments might be aimed at making them heir anyway. It is important to note that the Nuzi system primarily worked via adoption: a testator adopted a person as son and made him heir accordingly. This means that in general, dispositions of property would not be directed at an outsider but at a family member or a person who had become a family member. This is important because in the case of daughters we see that a father adopted a man as his son and then mar­ried him to his daughter.^[704] The purpose behind this was obviously to continue the family, to keep the family property together, via the chil­dren the daughter would bear to the adopted son. A good example of this can be found in a tablet where a man is adopted on the condition that he marries a particular girl, obviously the adopter's daughter, and the children from that match are to inherit all of the adopter's prop­erty. It is important to note that it is determined explicitly that this also applies for a daughter born from the match, if there are no sons.^[705]

It is fascinating to trace, though, what really happened after this arrangement was made. As Ben Barak showed, other tablets allow us to follow developments concerning the adopter's estate.^[706] The daugh­ter born from the match between daughter and adoptee bestows her property upon her father, the adoptee. This means that the property that was to belong to the grandchildren becomes property of the adoptee, a violation of the arrangements made in the adoption document. But it becomes even worse when the adoptee adopts his brother as his son and makes him his sole heir. This brother leaves the property to his own sons. This means that the property of the original adopter will eventually end up in the adoptee/son-in-law's family!^[707] Of course this has never been the intention of the adopter and it is obvious from the arrange­ments in other tablets that new ways were found to prevent things from taking this unwanted turn. The father adopted his daughter as his son, using the terminology of the son-adoption (previously used for making an outsider son) and then bestows all of his property upon his daugh­ter in her legal capacity as son.^[708] This development is not encountered elsewhere in Mesopotamia, where as we have seen the daughter could at times inherit, but not as son-heir. A similar instance however, can be found in Emar. There we find the same practice of giving a daughter a status as male, referred to by the words ‘I have established my daughter as female and male.'^[709] The Emar evidence will be discussed in detail below.^[710]

The Nuzi evidence shows that the awareness of the risks involved in having a daughter inherit the paternal estate led to different approaches at different times. At first the daughter was married off to an adopted son but this son could try to transfer the property of his bride's fam­ily to his own family. Therefore, the fathers reverted to making their daughters heirs as if they were sons, by giving them the legal status of males. The problem that occurred in Nuzi law was caused by the adop­tion procedure: the daughter was married off to someone who was made a family member but who retained a position within another family. This meant that the adopted son could indeed transfer property to his own family. Needless to say that this would not happen when a daughter was married off to a family member. Again we see that marriage is essential for the way in which the family property devolves and consequently for the choices people made in their estate provisions. It was precisely the problem of transfer of family property to another family that caused the legal practice of adoption of an outsider to change. The Nuzi answer to the difficulties was to change the legal status of the daughter: by making her male she could become a real heir. I note, however, that this still did not solve the entire problem. Obviously, the daughter could transfer the property to her own children, as the intention of the original adoption procedure had been as well. However, if the daughter failed to have chil­dren the property might still disappear into another family. The Nuzi documents do not provide an answer to that problem. We will see in the discussion of the comparable Emar tablets that there the testator nominated other heirs if his daughter would not procure the necessary children-heirs.^[711]

Obviously, in the instances where the daughter is established as male, she inherits as son. She is made son, consequently made heir. As Ben- Barak has observed this development probably followed the strict social order at that time, which required the paterfamilias to be a man.^[712] Only if the daughter was granted male status could she really become the head of the family, continue the paternal line and keep the paternal property together. This is especially clear in the Emar instances where the daugh­ter who is established as female and male also becomes entitled to per­form rites from the ancestral cult, a task otherwise obviously reserved for male descendants.^[713] This means that at Emar the nomination as male also enabled the daughter to perform tasks that would normally require male performance. Establishment as female and male therefore served more purposes than solving an inheritance problem alone. Therefore, it is not so surprising that other cultures chose other solutions. Ben- Barak has related the Nuzi and Emar evidence to the Biblical reference to Zelophads daughters in Num 27 and 36, remarking they inherit as daughters.^[714] Indeed they do and that is in my opinion reason to rather view the Nuzi and Emar evidence as opposite to the Biblical reference than as possibly revealing a continuing development as Ben-Barak assumes. Concerning both Nuzi and Emar Ben-Barak stresses that the daughter needs to be established as son-heir. This change of her legal status is vital for the whole of the arrangement. A next step in the devel­opment could be that the daughter was established heir as daughter, that is, no longer needing the change of legal status of female to male. There­fore, Ben-Barak argues that the instance where a daughter inherits as a daughter could show a further development of the daughter's position towards her father's estate. However, the Biblical solution of establish­ing the daughter as heir on the condition of marrying a member of her father's tribe comes closer to the older Nuzi institution of securing the paternal estate by way of marriage and (grand)children than to the later developments of giving the daughter an independent right (by establish­ing her as son-heir). Therefore, the Biblical evidence does not present a further development (daughter can inherit as daughter, in contrast with inheriting as son), but a different solution to the problem of securing the paternal estate for the father's family. It was precisely the link with marriage that shows that the daughter is not accepted as heir as such, but only on condition of procuring heirs. By demanding their marriage to men from their father's tribe it is made clear that the daughters are to continue their father's family and estate by way of their descendants, while it is ensured that these descendants are part of the same family! Precisely that latter fact posed the problem in Nuzi society, where the adopted male that was to marry the daughter remained part of another family. This problem eventually found its solution in the new adoption of daughter as son. Such a solution is not necessary if the daughter is required to marry someone of her father's lineage. Therefore, contra Ben Barak I do not think the Biblical Jewish legal evidence provides an example of a continuing development but rather of a solution from a different angle.

Overview of Sumerian/Babylonian/Assyrian laws (in chronological order) and their arrangements for the daughter with regard to her father’s estate

Laws of Ur-nammu: 2100 BCE: no arrangements in extant text; docu­mentary evidence shows that in the absence of sons unmarried daugh­ters could be their fathers' heirs, and that an adopted daughter who was appointed heir was disinherited at her marriage;

Laws of Lipit-Eshtar: 1930 BCE: unmarried daughter who is priestess lives in her father's house as heir;

Laws of Eshnunna: 1770 BCE: no arrangements in extant text;

Code of Hammurabi: 1750 BCE: whether daughters are incorporated in the general term, maru, heirs, is unclear; specific arrangement: an unmarried daughter who is a priestess shares inheritance with her brothers as heir;

Documents show that daughters sometimes act as heirs (in sharing the estate with their brothers), in all of these cases the daughters are unmarried;

Assyrian Laws: 1400-1100: no arrangements in extant text;

Nuzi: 1450-1340: no code of law found; documentary evidence shows two phases: adoption of an outsider as son-heir to marry daughter, while grandchildren would inherit; later, adoption of daughter as son, change of legal status from female to male comparable to develop­ments in Emar (to be discussed below);

Neo-Babylonian Laws: 600-500 BCE: arrangement that in case of first and second marriage, children from first marriage take bigger share of inheritance, impression could be that both sons and daughters would inherit but it is not clear whether the word used for heirs could be used for both sons and daughters (see Code of Hammurabi above).

It is obvious that the Nuzi material presents a more or less unique answer to the position of the daughter regarding her father's estate. The general impression of the other Mesopotamian material, spanning some sev­enteen hundred years, is that the daughter could act as heir, even equal to her brothers, if she was unmarried (and would probably remain that way). The obvious link with seriktum, dowry, implies that generally the idea was that a daughter received her share in the paternal estate by way of a dowry upon marriage. This suggests that afterwards she did not have any claims based on inheritance. This means that there could have been several situations:

If a man has sons and daughters:

- daughter lives in father's house upon his death and will in the future marry: her brother-heirs are obliged to provide her with a seriktum; she is not heir;

- daughter lives in father's house upon his death and will in the future not marry: daughter is heir alongside her brothers;

- daughter is already married: daughter has no claims based on inheritance.

If a man dies without leaving a son:

- his daughter becomes his heir, at first without further conditions (early documentary evidence),^[715] later on the condition she is unmar­ried (later documentary evidence^[716] and Code of Hammurabi). Comparison with the link with marriage in general seems to suggest that the daughter will not become heir to her father's estate if she is married.

In all situations, the idea is that the daughter's share in her father's estate consists of the seriktum, dowry, and only if she does not receive a seriktum (because she will remain unmarried) can she be an heir (even along­side her brothers). This means that marital status determined whether a daughter could be heir to her father's estate at his death. This clear link with marriage connects the Mesopotamian material with the Bibli­cal evidence, although the notion of granting the unmarried daughter a share in the paternal estate alongside her brothers seems to have been alien to Biblical thought. There, only in the case of a man leaving no sons can a daughter become her father's heir.^[717]

Anatolia and the Levant

Hittite Laws^[718]

This body of law (c. 1500 BCE)^[719] was originally probably preserved on two clay tablets, since scribes refer to two tablets distinguishing them by giving the opening words.^[720] A third tablet must have existed but has not been discovered so far.^[721] The available text contains numerous rules regarding compensation for bodily injury, stealing, arson etc. The extant text does not contain a specific section on law of inheritance or succession but only three provisions that could be linked with inheri­tance and succession are found dispersed through the corpus. HL 27 regulates what happens after the wife dies (who inherits her dowry),^[722] HL 192 regulates what happens if the husband dies^[723] and HL 171 is ‘a obscure provision, apparently concerning the disinheritance of a son by his mother.’^[724] None of these rules concern the position of the daughter.

HL 192 is a difficult provision as various versions have different read­ings. The first and generally accepted reading is: ‘If a man's wife dies, he may take her sister as his wife. It is not an offence.'^[725] Obviously, this rule does not apply to inheritance but to permitted and forbidden unions as discussed in the previous rules. However, another version reads: ‘If a woman's husband dies, the wife shall take the man's inheritance share.'^[726] This version can also be read to yield: ‘If a woman's husband dies, the husband's partner shall take his wife.' Haase commented on this that: ‘The rationale for this rule may be for the partner to maintain the enter­prise, in that by marrying the widow he receives her inheritance.'^[727] The rule would then be related to the next: HL 193 where it is said that ‘If a man has a wife, and the man dies, his brother shall take his widow as wife. (If the brother dies,) his father shall take her. When afterwards his father dies, his (i.e., the father's) brother shall take the woman whom he had.' Read in combination, the rules seem to imply that normally when a man died the brother of the man would marry the widow, but if there is a business partner he has the first right to marry the widow.

In other words, among the Hittites the economic motive of preserving the wife's dowry in the family of her husband (which motive probably lies behind all the levirate laws known in the ancient Near East) was restricted by the prior right of his business partner. This protection of the interests of a business partner is also reflected in other laws, where the exemp­tions from luzzi etc., once covered not only a man but also his business partner(s).^[728]

The institute of levirate marriage is also known from Biblical law. There it is applied to cases of a man dying without an heir and clearly serves the purpose of producing an heir for the deceased, to inherit his prop­erty and carry on his name.^[729] Here in HL 193 there is no reference to lack of children/heirs.^[730] The reason for a brother or other male relative of the deceased to marry the widow will then most likely be property related. Indeed, the sequence described, brother of deceased, after his death father, after his death brother of father, is the usual sequence for succession in Near Eastern law. The implication would be that the wife was heir to her deceased husband's estate, the same implication as con­veyed by an interpretation of HL 192 based on a business partner mar­rying the widow. It is unclear why the wife would have such rights to the estate. It seems more likely that the idea behind the levirate marriage of HL 193 was that the wife would eventually bear a son who would carry on the deceased's family, name and property.^[731]

Emar

Emar, modern Meskene in Northern Syria, has yielded over five hun­dred legal documents, in the form of cuneiform tablets, excavated both at structured and illicit excavations. The texts date to the thirteenth and twelfth century BCE. Most of them concern private legal transactions, although there are also some royal orders and a few records of litigation. ‘Our knowledge of inheritance law comes entirely from testamentary documents,'^[732] which means we do not have direct evidence pertaining to intestate succession. The law governing inheritance can only be inferred from the documents: we see that grandsons inherit in the absence of sons, while in the absence of direct descendants the deceased's brothers inherit. For my argument here it is important to note that Westbrook regards brothers as incorporating more distant family members, ‘pos­sibly members of the same clan.'^[733] This clan idea is at the heart of the Biblical arrangements for inheritance as contained in Num 27 and 36.

Testate succession obviously served to appoint those heirs who could not be heirs by intestate succession. In this group we find both wives and daughters. Without a testament, a daughter was considered to have received part of her father's property when she received her dowry. This means that the married daughter did not have a share in her father's estate. That a testament could change this can be seen in the case where two daughters, one married, the other unmarried, are to divide their father's estate.^[734] It is important to note what happened to the prop­erty after the daughter had received it. It is seen in documents that the daughter could ‘pass on the inheritance to her offspring or dispose of it like a son'; Westbrook gives three documents as reference: ‘Emar 32 and 128—sole heir; 185.'^[735] I note that Emar 32 and 128 are different in this respect that in both cases the testator says that there is no other natural heir but that in 128 there is another daughter mentioned.^[736] This means that in both cases a daughter is indeed designated sole heir but that does not necessarily mean that she is the only descendant. In Emar 128, the testator leaves two girls, of whom the first mentioned is made heir while the other is to receive a defined part of the inheritance. This means that Emar 128 actually comes closer to Emar 185, where the testator also decides what shares his children are to have in his inheritance. In the case of 185, however, there is no mention of a designation as sole heir. It is important to note that although none of the daughters is designated as sole heir, it is clear that the testator means one of them to inherit and the other not. He determines that if daughter X dies without offspring, daughter Y will inherit, but if daughter X dies while she has offspring, daughter Y will not have any right to the paternal estate.^[737] This implies that daughter X is heir to the exclusion of daughter Y while daughter

Y can only inherit if daughter X has died and left no descendants. The most important thing about this is that daughter X is not designated in the document as heir. The only arrangement regarding her position is that if she dies childless, her share will pass to her sister. Since daughter

Y obviously has no inheritance rights as long as her sister (or offspring of this sister) is alive, we can hardly assume that this text shows that daughters could inherit by way of intestate succession: X is obviously heir but Y is not. The question is, of course, why X is and Y is not. One could assume that the arrangement in itself implies that X is sole heir, while Y can only take her place under certain conditions, that is, that by the arrangement the testator implicitly made X his sole heir. However, this is not said in so many words, as happens in, for example, Emar 128, where there are also several daughters of whom one is made sole heir. The explicit designation found there is lacking here. This could imply that X is heir for another reason, namely by way of intestate succession. If we assume that X was unmarried she might have had a right to inherit a share alongside her brothers. Three brothers are mentioned in the text, none of them is explicitly designated as heir. Of all of them the testator says that ‘they are my sons' or ‘he is my son.'^[738] This could be taken to mean that they are his heirs as well. In that case, the unmarried daugh­ter might have a share alongside them. If we assume that daughter X was unmarried and Y married, this would mean that X was heir but Y was not. Therefore, Y has no rights based on inheritance, while X does. Nevertheless, it is odd that the arrangement is made that Y can inherit if X dies without offspring. One would assume X's share to go to her broth­ers in that case.^[739] It is also odd that offspring would be mentioned at all if X was indeed unmarried and thought to stay that way (compare the case of the priestess in Babylonian law). Therefore, it is not clear why X is given inheritance rights while Y is not and why Y is made heir in X's place if she dies childless.^[740]

A different institution found in the documents from Emar is that of giving the daughter the legal status of a male. The father is then

said to establish her as “female and male” (munus u nita). In most cases she is called upon to “invoke my gods and my dead.” Male status is there­fore granted to enable a daughter to perform the ancestral cult—a task otherwise reserved for the eldest son, and one that is closely linked to his inheritance of the family estate.^[741]

I think there is a difference between the cases where the father makes a will to give his daughter part of his estate and these instances where the daughter is almost put in the place of a son-heir. In the first instance the daughter is enabled to share in the inheritance while in the second she will become heir by virtue of assuming the identity of the eldest son. This was obviously done in cases where there was no son to perform the ancestral cult, or there was a fear of him dying before his father. One of the documents is even made out under the condition that the brother of the girl-donee will not survive his father. If he does, he will be obliged to marry her off.^[742] This arrangement assumes that in that case, the son will have the position of heir and only be obliged to perform the task of a brother to his sister in marrying her off. This means that the daughter is only appointed male (thus heir) on the condition that there will be no male offspring at the time of her father's death. This is important because it shows an awareness of the need to have a child, even if it is a girl, inherit the paternal estate and perform the duties that are con­nected with that. The importance of that latter aspect, the performance of duties, can be seen in a document where a girl is designated both male and the mother of her three younger brothers, to ensure that she can undertake duties they cannot undertake because of their age.^[743] In yet another instance the daughter is required to marry off her younger brothers while she inherits a share alongside them. This means that the daughter is effectively made co-heir alongside her brothers, assuming the responsibility of the eldest son. In this instance, she is not specifi­cally instituted as a male but accepted as heir by the arrangements the father makes in the will. Her duty to marry off her brothers is obviously a duty normally resting on the eldest son.^[744]

In all cases it seems clear that in the absence of a son a daughter is preferred as heir and undertaker of religious duties over other possible heirs (such as more distant family members). This resembles the prefer­ence for the daughter over the brothers of the deceased we find in other laws as well. The important difference here is that the daughter is not assumed to be heir in the absence of sons (no preference of offspring, whether male or female, over more distant family members) but has to be appointed as such by her father during his lifetime. If this happened, the daughter could undertake all obligations that normally rested on the eldest son (including marrying off her brothers). It is interesting to note that this happened even if there were sons. The daughter then received a share alongside them.^[745]

Alalakh

‘Alalakh, modern Tell Atchana, lies on the direct road between Aleppo and the Mediterranean, in the Amuq plain, which today occupies the major part of the Turkish province of the Hatay.’^[746] The evidence consists of cuneiform tablets, most of them written in Akkadian, which come from two archives, dated to two different periods. Consequently, the evidence is designated as Alalakh level VII and Alalakh level IV, dating to the seventeenth (contemporary with the Old Babylonian Period) and fifteenth century BCE.^[747]

Concerning the material from level VII, it is said that ‘these docu­ments leave no doubt that sons as well as daughters were entitled to inherit the paternal estate.'^[748] This remark could cause confusion as it could be read to mean that sons and daughters were entitled to inherit the paternal estate on the basis of law, by way of intestate succession. I think, however, that the documents point to exactly the opposite con­clusion: they testify to arrangements of testate succession, of a division of shares by the father during his lifetime. See, for example, AT 9, which refers to ‘my father's will.'^[749] In AT 95, it is not clear whether the share referred to concerns a share in an inheritance based on law of succes­sion or on a testamentary division.^[750] Two other documents clearly refer to disputes over divisions made by the testator during his lifetime. For example, in AT 11, a sister brings a lawsuit against her brother claiming that her father assigned a certain share in the inheritance to her. The term used for assignation seems to have denoted ‘the disposition of one's property to take effect after death.'^[751] That a father could assign a share to a daughter does not mean that she is entitled to inherit. On the con­trary, it could denote that she was not and that the disposition was used to grant her a share anyway. In this respect it is important to note that a significant number of the cases concerns suits between brothers and sis­ters. This could mean that the daughters' right to inherit was disputed. This is, however, difficult to determine as the text is often damaged. For example, in AT 7 a brother and sister bring a legal case.^[752] The brother's point of view is given first, implying that he instituted the case against his sister claiming that ‘Bittatti has nothing to do with this house.'^[753] Bit­tatti disputes this, but unfortunately her words are damaged and it is unclear why she claims to be entitled to the property. She speaks about ‘a portion which is over...,' then suggests that they will share ‘the house of our father' together. Bittatti thus does not claim the entire house but wants to share the house (presumably) equally. A certain Abiadu whose part in the entire deal is not clear gives witness that ‘Bittatti had a share in the bequeathed property' but he does not state why. The king then judges that the son is entitled to choose first what part of the house he wants to have and the daughter is obliged to take what is left.

I think it is most likely that Bittatti was entitled to a share on the basis of some disposition her father made, although this is not stated in so many words in the extant text. The fact is that both the daughter and the witness testify to her right to a share in the property of her deceased father. Bittatti interprets this right as a right to share in the property with her brother, while he states that she has no right whatsoever. I empha­size that the son-brother does not support his claim but makes a mere statement his sister is not entitled to the property. Despite the lack of any evidence of his right to the property, this right is acknowledged and obviously preferred over the daughter's right. She does get something of the property but only after her brother has made a first choice. This suggests that the law secured the son-brother's position, i.e. that he was sole heir on the basis of intestate succession. Only because the daughter could prove that she was entitled to a share too, could she get part of the property. Obviously, her right depended on some kind of disposition the deceased made during his lifetime.^[754]

This example shows that a dispute like this one does not prove that daughters had inheritance rights comparable to sons. On the contrary, it seems to show that they did not.^[755]

I will not discuss the level IV documents in detail as there are a number of difficulties with the interpretations of this material. For instance, I do not believe that AT 87 con­cerns a division of an inheritance, as Marquez Rowe argues.^[756] It seems to me it is rather a transfer of property in which several persons and their property seem to be included. It is not clear either whether a female person mentioned in this text was a daughter or a daughter-in-law. Marquez Rowe notes ‘Indeed, the marriage documents attest to the fact that daughters and daughters-in-law could also receive a share of the estate of the head of the family, namely through dowry.'^[757] If this is true, the daughter or daughter­in-law would receive the share through the dowry and would not have a right to inheri­tance later on. Therefore, when understanding AT 87 as a division of inheritance, like Marquez Rowe does, it is not likely that a share will be granted to a (married) daughter or daughter-in-law there, but to an unmarried daughter. I refer to Wiseman's original interpretation of the text, in which he took this female person to be ‘the eldest of the marriageable daughters.' The idea that the daughter is not yet married and therefore qualifies to receive a share in the paternal estate fits with the evidence found in other laws and legal documents discussed above.

Marquez Rowe further mentions a marriage contract in which a clause seems to determine what will happen to the property of the wife ‘there being no son and no daughter.' As Marquez Rowe notes, ‘this suggests a right of inheritance in daughters, perhaps in the absence of sons.'^[758]

Ugarit^[759]

Ugarit was the capital of a North Syrian Kingdom that flourished around 1500 BCE. No codes of law are found, only legal documents both for domestic and international use. Of the first group two-thirds are royal deeds. Some types of document are conspicuously lacking, for example, the marriage contract. The documents that concern inheritance do not present univocal evidence with regard to the position of the daughter. On the one hand, daughters are not mentioned as co-heirs in divisions of paternal estates, but at the same time there is an instance of co-owner­ship of a daughter and her adopted brother.^[760] The document is dis­cussed by Miller in his dissertation about the juridical texts from Ugarit, where he concludes that

it is a woman... who owns the estate to which the adoptee brings numer­ous properties which they are to share. Line 5 suggests that they are legally to be considered equals. However, just as in text #8 [RS 16.344] the adopted brother loses his right to the estate if he breaks contract. On the other hand, if the adopter [the woman] initiates the dissolution, she is liable for a sum of money paid to her “brother”, plus she must split their common possessions between them.^[761]

The question is in my opinion whether this co-ownership that concerns the adoption the document records has anything to do with (intestate) succession. I get the impression that it is the daughter who is (or would be) sole heir, while the adoption ensures that she has to share the estate with her adopted brother. Therefore, I think that the document supports the idea conveyed by the other documents that daughters do not inherit alongside brothers. In this case, however, the daughter obviously did not have a brother. The idea behind the document is that in that case the daughter was heir to the entire estate. The adoption arrangement in the document changes this to a situation where the daughter has to share the estate with the adopted brother. But this does not mean that a daughter inherited alongside brothers. In the case concerned the daugh­ter—only child is sole heir, while she has to share the estate with some­one who is appointed her brother in a later instance. This means that RS 21.230 does not show that daughters could inherit alongside sons but just the opposite: that daughters inherited if there were no sons, i.e. no male heirs. If a male heir was added later by way of adoption, the daugh­ter maintained a claim to her father's estate, which comes down to half of what she was originally entitled to. Consequently, the document does not show that a daughter gets a share, but that she actually loses half of the estate to her new adopted brother.

In his discussion of inheritance law in Ugarit, Marquez Rowe states about daughters that ‘they possibly could have rights on intestacy in the absence of brothers (cf. the provision in the gift of paternal property RS 15.138+/109+).’^[762] This could support my conclusion about RS 21.230 that the daughter was the original sole heir (instead of heir alongside the adopted brother). However, I do not see how the documents Marquez Rowe mentions support his assumption. In RS 15.138 a father bestows his property unto one of his sons, saying that no son or daughter has a claim to it. In RS 15.109 the only mention that refers to inheritance is in the mention of sons and daughters in line 6.^[763] This line is broken and relationship with the issue at hand is unclear. Of course it is significant that daughters are mentioned alongside sons, probably to express that they either did or did not have a claim, comparable to the phrase in 15.138. However, I think such an instance does not necessarily imply that daughters had a right to inherit in the absence of brothers. This would only be true if the testator made a disposition in favour of an outsider and declared that neither sons nor daughters had a claim to his property. Then we could assume he might have meant to say ‘sons or daughters in the absence of sons.' In the documents referred to by Marquez Rowe however, the father bestows his property unto a son. This means that it is certain he has a son and this would exclude daughters from inheriting all together. Since the document also mentions the sons of the favoured son it could be that the testator meant that if the favoured son dies, his male offspring will inherit and not the brother or sister of the deceased favoured son. However, this does not show that daughters could inherit in the absence of sons, since the male offspring of the son would take his place by way of substitution and strictly speaking we would not have a case of a daughter inheriting in the absence of sons. This means that what the document seems to convey is that when one son is favoured over the other children, those children, whether male or female, can­not come up against the division their father made. This suggests that daughters could have claims to the paternal estate alongside sons. Con­sequently, it seems that the documents referred to by Marquez Rowe sooner suggest that daughters had certain claims to their father's estate (as possible claims were warded off) than that they imply that daughters inherited in the absence of sons.

In Handbook of Ugaritic Studies it is said that ‘the position of the woman as heiress of the paternal goods is not so clear, although it can be supposed that, as in other Near Eastern societies and under certain conditions, she could be named as heiress by her father.' This observation does not concern the issue of intestate succession, as naming by the father implies testate succession. Indeed, in all Near Eastern societies cases can be found of daughters inheriting paternal goods by way of a legal document. This does not mean, however, that the daughter could also inherit where such a document was lacking, or that she could inherit in case there were no sons. It is important to keep this in mind as the references given, of the other Near Eastern societies referred to, do concern, at times, discussion of cases of intestate succession, for example, in the articles of Ben-Barak.^[764]

That the position of women regarding inheritance law is not clear can be seen in instances where a man dies without any legitimate descen­dants. In RS 15.89, the property passes to the daughter of the deceased's brother.^[765] This is interesting, because this could suggest that daughters took the place of their fathers in inheriting what would have been their (the brothers') share in their brother's estate. We do not know whether the daughter concerned had brothers or not, thus whether she can be heir in the absence of sons. In any case, the instance clarifies that women could inherit even an entire estate, possibly in the absence of other heirs.^[766] Because the document concerns an act by the king, we cannot be sure that the disposition follows law of succession, i.e. that the niece was the legal heir according to the law of intestate succession, or whether the king decided to what relative the estate was to go. It seems likely that the order of succession was followed. The position of the niece towards her uncle's property suggests that daughters could inherit in the absence of sons.

Regarding the position of the married daughter it is worthwhile to look at RS 17.149.^[767] In this text a man purchases a field which formerly belonged to the father of his wife: ‘Formerly this field belonged to Izaldu, the father of Pidda, and now the field returns to Pidda and....'^[768] Ben- Barak suggested this could indicate that the act of the husband in buying the field was actually ‘an act of restoration.’^[769] The daughter might have been an only child, that is, rightful heir of Izaldu and the purchase of the property could have been a restoration of property to the daughter in that capacity. However, although the emphasis in the text on the return of the field to the daughter of the former owner is obvious, this need not denote that there was any real right of the daughter to this field. Even though people might have felt it was right that the field returned to the daughter of the man who originally owned it, this need not imply that any legal right of the daughter to own the field was underlying the transaction. In fact I would think that the purchase by the husband indi­cates that this was not the case. If the daughter had a right, this would have come into being at the death of her father and would not require any further legal act. Therefore, I tend to agree with Vita, who would rather understand the text as a sale unrelated to inheritance issues.^[770] This means that the fact that the daughter is married need not affect our understanding of inheritance and succession in Ugarit.

Gifts mainly concern royal grants of real estate. ‘As for the non royal gifts, women appear relatively regularly as recipients, from the hus­band (e.g., RS 16.253) or from the father-in-law (RS 15.85), perhaps as a means to compensate them for their secondary status in intestate suc- cession.’^[771] The gift from the husband of course concerns the position of the wife towards her husband’s estate and will not be discussed here. RS 15.85, however, does not concern a gift from a father-in-law but from a brother: ‘This transfer grant was likely a marriage gift from Niqmaddu to his sister, Dalaptu.’^[772] The link with marriage there is interesting in that the gifts from the Judaean Desert papyri can also be linked with marriage. This means that gifts were not as Marquez Rowe styled it ‘a means to compensate them for their secondary status in intestate suc­cession'^[773] but that gifts were used at specific occasions (like marriage) to compensate consequences of the marriage for intestate succession. A brother might bestow a gift on his sister, because she could not inherit in any case (alongside a brother), but it might also be that she could not inherit anymore once she was married. The evidence from Ugarit pro­vided by the documents discussed above is not completely conclusive to this point.

Overview in chronological order

Law of Alalakh

Level VII: 17th century: documents seem to show that daughters could receive a share through a disposition by the testator, apparently no right to inherit based on the law of succession;

Level IV: 15th century: documents seem to indicate that daughter received a share in the paternal estate through dowry; an arrangement in a marriage contract determining what would happen if there is no son or daughter born from the marriage, could indicate that daughters were entitled to inherit the paternal estate, probably if there were no sons;

Hittite laws (c. 1500): no arrangements concerning position of daugh­ters in extant text;

Law of Ugarit (c. 1500): daughters can inherit on the basis of arrange­ments in legal documents, no univocal evidence as to intestate inheritance (regarding the obvious choice for arrangements by way of documents the daughter probably did not have inheritance rights based on intestate succession);

Law of Emar (1300-1100): daughter can be appointed heir, or even made ‘female and male' giving her the status of a son-heir, this could be due to the consequences of having a daughter inherit (son-in-law can have property transferred into his family, see discussion above); compare Mesopotamian Nuzi discussed above.

Conclusions

It is obvious that the evidence does not paint the same picture as in the case of Mesopotamia where the solution for the position of the daughter is found in most cases in denying her claims to her father's inheritance once she is married (Nuzi is the only obvious exception there). Only unmarried daughters (often also priestesses) can inherit a share in their father's estate. The evidence from Alalakh seems to come closest to this picture as it could be interpreted to relate inheritance to dowry. The support for this interpretation obviously comes from marriage contracts sooner than from documents related to succession. One of the marriage documents even seems to suggest a right for the daughter to inherit if there were no sons.

For the Anatolia/Levant evidence we see that various solutions were offered, of a different nature, like granting the daughter a share in the inheritance alongside her brothers, granting her a certain defined object of her father's estate or instituting her as ‘male and female' (which also gave her rights to perform certain duties normally performed by the eldest son). What these various solutions have in common is that they were effected by arrangements in legal documents. From this area we do not have arrangements for the position of the daughter in rules of law, that is, with the exception of the Biblical evidence. Num 36 can be regarded as an addition to Num 27, which is clearly a rule of law of suc­cession. Therefore, the Jewish evidence is the only evidence in this area that presents a general rule that was applicable without the intervention of legal documents.

Excursus: Elephantine

The position of the daughter towards her father's estate and the role of deeds of gift in this context can also be studied for the documents from Elephantine of the fifth century BCE. The exact legal situation there calls for a detailed discussion that is outside the scope of this study.^[774] It suffices to say that the character of the material, documents from fam­ily archives by Jews, allows for a comparison with the Judaean Desert archives. Illustrative for the position of the daughter under discussion here are three related deeds aimed at disposing of a house to a daughter. The daughter is at first granted with a share in the house, this happens some three months before her marriage. Sixteen years later, another deed of gift is made up that explicitly relates the gift of part of the house to the donor's death (and support in his old age). The same clause might have been contained in the first document of which the end is missing. Porten argued that:

the first document acknowledged Jehoishma's claim as heir to a share in her father's estate. It is quite clear from the several no-suit claims that daughters might inherit from their fathers at Elephantine. Such acknowl­edgment was made when Jehoishma married (cf. C 8) because at that time she left her father's household to join that of her husband.^[775]

This latter remark suggests a link between marriage and law of succes­sion in this sense that apparently it was deemed necessary to determine at the time of marriage that the daughter would be entitled to part of her father's estate. I wonder, however, whether this could be called a claim based on the law of succession, i.e. whether Porten is right to call Jehoishma's right a ‘claim as heir.' A claim as heir, that is, a claim based on intestate succession, does not require any kind of legal act or confir­mation. Actually the fact that a right to the property is explicitly given to the daughter suggests that she would not have such a right otherwise. Porten refers to Yaron's discussion of inheritance law in the Aramaic papyri, apparently to support his claims that ‘daughters might inherit from their fathers at Elephantine' but Yaron is in fact obviously inclined to believe they did not. Admittedly, Yaron says that the ‘small number of documents available demands caution in our conclusions' but contin­ues to state that it seems that a daughter would not be able to compete with the claims of a son or a brother of the deceased.^[776] This conclusion is prompted on the one hand by the Biblical evidence, on the other by ‘the relatively frequent occurrence of gift in Elephantine, and it is always women who are the donees. This does suggest an inferiority in intestate succession which it was sought to overcome by resort to gifts.'^[777] Yaron here follows the logical line of thinking also adopted by Cotton and Greenfield for the Judaean Desert material, that the presence of deeds of gifts aimed at daughters suggests that they would not inherit their father's estate. In the instance of the deed of gift concerned here, the very fact that a legal act is made to transfer property, shows that Jehoishma can­not have been heir based on the law of succession, i.e. following a rule of law. However, in the light of the relationship between law of succession and marital status as proposed and proven in this chapter it is impor­tant to note when this situation, of transfer of property by way of gift, occurs: at Jehoishma's marriage. This implies that the right this daughter had to her father's estate might have been based on the law before she married, but afterwards it apparently required a legal act (deed of gift). Consequently, rather than assuming this deed of gift acknowledged an existing right (of Jehoishma as heir) it is logical to assume that it served to acknowledge a right to property, based on gift, replacing a right to property based on the law of succession that had ceased to exist. Obvi­ously Jehoishma did not have a right based on the law of succession after her marriage but she might have had one before. To put it differently, the gift suggests that her position towards her father's estate changed upon marriage and a legal act was needed to counterbalance this, to make sure that she would receive part of her father's estate anyway. In this aspect the evidence from Elephantine is in line with the rest of the evidence from the ancient east.