I. Evidence for Applicable Law of Succession in the Archives Son

In the instance of P.Yadin 5 Joseph son of Joseph surnamed Zaboudos declares that he holds certain items on deposit in favour of Jesus, son of his brother Jesus.^[550] These items as is clarified have been part of a business that Joseph and Jesus, the father, had together.^[551] The situation suggests that Jesus, the father, died and that the son as his legal heir was entitled to half of the business.

See Lewis, 35, who understands the situation this way: ‘In 5 the situation appears to be that the brothers Joseph and Jesus had been in business together, and, Jesus having recently died, Joseph here records the money value of his various properties and enter­prises, and acknowledges that he has that sum “on deposit” to the credit of the heir, the younger Jesus.'

Satlow seems to take the situation as being the result of a disposition by the deceased father: he writes ‘Jesus, or his brother and business partner Joseph, left his share of the family business to his minor son in the form of a bill of deposit.'^[552] I do not think this state­ment is factually or legally correct, whether Jesus is supposed to be the subject or Joseph. To start with Jesus: deposit is not a form of will. The act as we have it in P.Yadin 5 is an act between Joseph, the remaining business partner, and Jesus, the heir; the deceased Jesus plays no part in it whatsoever.

It is also incorrect to say that Joseph left the share of his deceased brother to the son: at the deceased’s death his son has become owner. Joseph cannot leave something he does not own to someone else. Furthermore, the deed of deposit as such implies that someone declares that he will hold what is not his own property.

The reasons for using a deposit form are discussed in detail in the treatment of this deed in Chapter 2 above.^[554]

By declaring that he had the items on deposit with him in favour of the heir, the remaining partner could ensure that he did not have to return the goods immediately to the heir. The fact that the brother of the deceased is obviously not the owner of the property but the son is, would then be evidence for inheritance by the son over the brother of the father.

One cannot be one hundred percent sure about this since it is not clear what the sum of the business encompasses and what share the heir is entitled to. From πάντων in line 8 of fragment a one could even get the impression that the nephew is entitled to all of the business: ‘as a deposit of all the assets of silver....’ Nevertheless, line 12 speaks of ‘from everything which was found [to belong] to your father and me, between me and him.’ This suggests that the nephew was entitled to a share in the business.

Perhaps the brother was in charge of the property as long as the heir had not yet come of age. This is in any case the interpretation of Satlow, who speaks of a ‘minor son’ (without any further explanation) and sug­gests that ‘Uncle Joseph may well also have served as a guardian to his nephew, thus again keeping outsiders away from the family property.'^[555] The situation could then resemble that of P.Yadin 12-15. The question is, however, whether the two situations are really alike and whether the evidence from P.Yadin 5 supports the assumption that Jesus was a minor at the time of the act, or rather goes against it.

P.Yadin 12-15 concern the guardianship over Babatha's minor son, Jesus, or rather the management of the property of this minor son by guardians. P.Yadin 12 deals with the appointment of the guardians, two men, one a Jew, the other one a Nabataean, appointed by the city coun­cil of Petra.^[556] One could get the impression that this appointment of guardians immediately followed the death of the father, but I think this is unlikely when one reads P.Yadin 13. In this document, a petition to the provincial governor, Babatha complains about having received too little maintenance money for her son.^[557] Lewis described her complaint as follows: ‘the gravamen of her complaint is that the two guardians, “appointed four months ago and more” (line 20), have been giving her an insufficient sum, only two denarii a month, toward the maintenance of her orphan son (lines 22-24).'^[558] The appointment of guardians obvi­ously refers to the decision of the city council mentioned in P.Yadin 12.^[559] The way in which the appointed guardians are introduced in P.Yadin 13, however, suggests that their appointment did not automatically follow the death of Jesus' father.

What exactly the position of the brother of the deceased was is hard to tell. It is in any case clear that he had something to do with the man­agement of the property of the deceased.

In the fragmentary first lines of P.Yadin 13 all kinds of words are legi­ble that could refer to a business situation. We would then have to envis­age that the father of the orphan had been in a business with his brother Joseph and that this business had to be split up like the one in P.Yadin 5. Joseph was still effectively in control of the property, while the orphan was entitled to his share (the share of his father) in that.^[565] There is no mention here, though, of formally turning the situation into a deposit construction. Instead it appears that there had been agreement about the naming of someone to see to debts and maintenance money. This could refer to the appointment of the guardians, who had then been appointed either on Babatha’s request, Joseph’s proposal or an agreement between them. Still the construction had not worked, because neither Joseph nor the guardians had given enough maintenance money, enough that is in Babatha's opinion. This means that P.Yadin 5 and 12-15 indeed refer to a situation of a deceased man's brother holding property of a business that belonged to the deceased's heir, but there is an important difference in the way in which this situation is dealt with. In the first instance, of P.Yadin 5, brother and son, remaining partner and heir, formalize their relationship by way of a deposit construction, enabling the partner to keep holding the property, while the heir has his claims acknowledged and will receive his share in due time. In P.Yadin 12-15 on the contrary we find no such transaction, but the brother who is holding the property is somehow supervised by guardians who should see to the payment of maintenance money to properly raise the orphan.

Other children/wife in presence of a son

In both instances there is no indication that there were other children. Nor is there an indication that the mother of the child, the wife of the deceased, had any claims to the deceased's estate. In P.Yadin 5 a debt the deceased had towards his wife is singled out from the claims the heir can make and is acknowledged as another separate debt resting on the business: ‘over and above seven hundred ten “blacks” of silver which your mother has received as [repayment of] her wedding money, which she had [as a lien] against Jesus your father.'^[567] The claim of the wife is thus related to her marriage with the deceased, therefore it is not a claim based on succession. This means that P.Yadin 5 seems to indicate that the wife did not inherit from her husband.

P.Yadin 12-15 do not reveal much about the position of the wife regarding her husband's estate, but there are interesting details in P.Yadin 21-22. In these documents Babatha sells the produce of orchards that belonged to her late husband Judah the son of Eleazar Khthousion. Obviously, this man was her second husband, she married him before 128.^[568] Since she refers to him as her late husband, it is clear Babatha was widowed again. She sells the produce of the orchards which she, as she says explicitly, distrains in lieu of her dowry and debt.^[569] This means that in P.Yadin 21-22 we find a widow selling produce of orchards that belong to the property of her deceased husband, while she is entitled to do so based on rights related to dowry and debt. This suggests that the widow did not have a right based on succession. Like in P.Yadin 5 the claim the wife can make on the property of her deceased husband is related to her marriage to him, and more precisely her dowry.^[570] In the specific instance of P.Yadin 21-22 Babatha is also entitled to the prop­erty because of an unpaid debt,^[571] but this does not have anything to do with succession either. A creditor of the deceased was entitled to repay­ment of his money at the debtor's death and could enter his claim(s) with the heirs. This claim on the property of the deceased, his estate, was obviously not based on succession but on the legal act the creditor had made with the deceased during his lifetime.

P.Yadin 26 presents us with a number of difficulties as it deals with a dispute between Babatha and a woman named Miryam concerning certain property of Babatha's deceased husband Judah. Miryam, who only appears here, was apparently Judah's first wife, probably the mother of his daughter Shelamzion, whose position I will discuss in more detail below. Babatha designates Judah as ‘my and your deceased husband.'^[572] Miryam seems to do the same, but this is not completely certain as part of her statement is damaged.^[573] Whether that dispute implies Judah had divorced Miryam or that he had entered into a bigamous match with Babatha is not clear. Lewis took P.Yadin 26 to be ‘an unprecedented documentary source to the extant evidence on the subject of polygamy,' adding further on that ‘polygamy... was indulged in as a matter of course considerably farther down the social scale than has hitherto been recognized.’ ^[574] I am not sure that the evidence is as conclusive and uni­vocal as Lewis concludes: as Katzoff argued, ‘what appears here could equally be serial monogamy as concurrent polygamy’^[575]

Katzoff discusses five possibilities when considering the claims the women could bring: intestate succession, testamentary succession, suc­cession based on marriage contract, settlements from marriage con­tract, and misunderstanding concerning personal possessions. The first option, intestate succession, is rejected by Katzoff on the same grounds as described above regarding the description of the wife’s entitlement in P.Yadin 5 and 21-22: Jewish law does not know intestacy inheritance for the wife and, as Katzoff adds, neither does Attic (Hellenistic) or Roman law. Roman law does acknowledge the wife as an intestate heir if there are no other blood relatives (cognati), but there are in this case (fore­most Shelamzion, Judah’s daughter). Consequently, it seems that neither Babatha nor Miryam could in any case under whichever system of law be the legal (i.e. intestate) heir.^[576]

The second option, testamentary succession, could play a part if Judah had left a will. Katzoff does not mention this, but he probably thought of this possibility, because Miryam mentions written instruc­tions by her husband.^[577] Katzoff grants that there is no will found in the archive and that it would not seem likely that Judah would leave some­thing to a wife he had divorced. He adds, however, that people may do unexpected things in wills and that the more unexpected the beneficiary is, the more likely his (in this case her) position will be contested. True as that may, there is not only no will found in the archive pertaining to this argument, but none in general. This is probably due to the fact that gifts were used to the effect of wills.^[578] It is therefore rather surpris­ing Katzoff did not mention the possibility of a gift. Suppose Judah had made Miryam a gift during their marriage and Miryam now saw herself as entitled to the property concerned in the gift. It might well be that the validity of such a gift was disputed after the husband's death. Was the gift still valid after the divorce or not? In the gift of P.Yadin 7, for instance, it is determined that the donee has to stay the wife of the donor and take care of him. This can be understood to be a conditio sine qua non. In that case Miryam would not be entitled to the gift anymore. A complication connected with the assumption of a gift is that it is not clear whether the property Babatha alludes to has recently been seized by Miryam or whether she was holding it for a long time, perhaps the entire period after her divorce. It could be that Judah never did anything about this, but Babatha intends to do so. This could have been the case because Judah's estate did not offer enough to satisfy Babatha's claims: the amount of money concerned in the dowry and the loan of P.Yadin 17 could amount to some seven hundred denarii, a very substantial sum indeed.

Katzoff's third explanation is based on the clause, sometimes found in Greek marriage contracts from Egypt, of mutual succession of the spouses. He notes though that these clauses are not found in any of the seven marriage contracts from the Judaean Desert (whether Greek or Aramaic). The clause is in any case not there in Babatha's marriage con­tract of P.Yadin 10. It therefore seems unlikely that such a clause was behind the present dispute. I add that it could be disputed whether Miryam could invoke such a clause when she was divorced by Judah.^[579]

A clause found in marriage contracts, for example, those from Ele­phantine, that Katzoff does not mention, is a clause determining the consequences of a second marriage, while the first is not terminated yet. The clause is a bit ambiguous since it says that the husband is not allowed to bring in another wife next to the one he is marrying now, but it is at the same time said that if he does so, this will cause the first marriage to end.^[580] This means that taking a second wife will amount to divorcing the first: the second marriage effects divorce. If such a clause had been part of the marriage contract between Miryam and Judah the clause would not have made the match with Babatha invalid, but Miryam's own marriage with Judah. Therefore, it does not seem likely she is basing her claims on such a clause.^[581]

Katzoff suggests as a fourth possibility that Miryam's claim was based on a prior divorce: she might have been promised something which she never received. I think Katzoff is right in remarking here that the claims of the wives in their individual positions, as divorcee and widow, could explain the use of the phrase ‘my and your deceased husband' to refer to Judah. Therefore, we do not necessarily have to accept polygamy behind the conflict.

The last possibility Katzoff mentions is that there was a dispute con­cerning what property belonged to which person. He points out that household possessions are often treated as communal by the spouses and then concludes that ‘these sorts of misunderstandings could be enough to account for attempts by each of the former wives to take hold of personal objects leading to the lawsuit in P.Yadin 26.'^[582]

Katzoff also discussed the question of why, in the latter two cases, Miryam presses her claims after Judah has died, while she could have done so right after the divorce. Fear of Judah or awareness of the weak­ness of her claims could indeed have been a reason, although I think it is more likely to argue, as Katzoff has done himself earlier on in the article, that Miryam held the goods under dispute from the start of her mar­riage, thus that she had never given up on them. Babatha now presses her that she should, even taking the case to court. I argued above that a reason for this could be that Judah's estate did not encompass enough to satisfy Babatha's claims. I then envisage the following scenario: Judah, who originally came from En-gedi, has left possessions there in the keeping of Miryam. Whether this was the result of a divorce settlement, or a personal decision by Judah, we cannot know. Babatha is now, after Judah's death, intending on having her dowry and the debt returned to her. She cannot have her claims satisfied from the property within the estate (perhaps only the property in Mahoza?) and thus she turns to the property still in En-gedi.^[583] She may have warned Miryam before to hand the property over, since it is said by Miryam that she has told Babatha on an earlier occasion to stay away from the property.^[584] This could indicate that Babatha had requested her to hand the property over (for example in a letter) or that Babatha had actually been to En-gedi in person. Having been unsuccessful in this respect she is now pressing charges to have the property given to her. I wonder whether she was induced to try this by the acts of Besas, who summoned Babatha to explain her holding of the orchards belonging to Judah (P.Yadin 23-24). For Babatha uses exactly the same strategy: she asks the other party to explain her behaviour, inferring that the grounds for it should be given. Should these grounds be lacking, then the property should be given to the person entitled to it. It is therefore not that illogical that Babatha summons Miryam on the same day she is herself summoned again in the suit by Besas (and Julia Crispina). She might have decided to try her luck in a suit as well.^[585]

Regardless of the exact interpretation of the claims brought by Babatha and Miryam in P.Yadin 26 it is clear from the documentary evidence that a wife had no rights to her husband's estate based on the law of succession.

In absence of a son

Contrary to Babatha's first husband Jesus, who left a son at his death, Babatha's second husband Judah did not have any son we know of from the archive. The only child of Judah that is referred to is his daughter from a previous marriage, Shelamzion.^[586] Assuming that Judah indeed had no sons at the time of his death, the question would be whether his daughter would be his legal heir. P.Yadin 20, a document that testifies to the settlement of a dispute, could be interpreted to mean both that she was and that she was not.

In the document, Besas, ‘guardian of the orphans of Jesus son of Khthousion' and Julia Crispina, ‘supervisor,' acknowledge the right of Shelamzion to a courtyard.^[587] It has been disputed whether this court­yard is the one donated to her in P.Yadin 19. In my opinion Cotton has convincingly argued this is unlikely.^[588] This means that Shelamzions right to the courtyard, acknowledged in P.Yadin 20, did not come about by a deed of gift found in the archive. The matter is complicated by the fact that the courtyard is said to have belonged to Khthousion, the father of Judah and Jesus, and Shelamzions grandfather. This implies that the dispute here concerned competing claims to a courtyard of a grand­father by the sons of one deceased son and the daughter of the other. Obviously, the daughter's right is acknowledged. This could have vari­ous reasons. We could assume that both the sons of the one deceased son and the daughter of the other were heirs to their father's share in the estate of the grandfather. The estate may not have yet been divided and at the death of both sons, the grandchildren had to decide which parts of the estate would belong to whom. Perhaps a sort of provisional division had been made by the deceased sons, which entitled Shelamzion to this specific courtyard.^[589] In any case, in such a scenario we would have to assume that both the sons and the daughter would take the place of their father in being rightful heirs to the estate of the grandfather. This means that P.Yadin 20 can be read to imply that the daughter, in absence of a son, inherited her father's estate. The challenge made to her rights by the guardian of the minor sons of the deceased's brother would then have concerned the division of the property of the grandfather between the sons, or to put it differently, whether Shelamzion could be considered to be entitled to this piece of property because her father had been.

Cotton suggested that the guardian might have challenged Shelamzi- on's right to take the place of her father in inheriting part of her grand­father's estate.^[590] In that case the dispute does not concern the question of whether the daughter is entitled to this specific piece of property, this part of the deceased grandfather's estate, but the more fundamental question whether a daughter can take the place of her father in inheriting his father's (her grandfather's) estate. This could suggest that daughters were not equal to sons in this respect. The outcome of the case, however, shows that the nephews were forced to acknowledge Shelamzion's right to the courtyard. Were they simply mistaken in their assumption that Shelamzion held no valid right to the property concerned, or should we assume that Shelamzion did indeed hold no direct obvious right to the courtyard, based on law of succession (in casu substitution) but had been able to prove her right to the courtyard in another way?

It would be logical to think of a deed of gift.^[591] However, there is no deed of gift to that point in the archive. The only deed of gift to Shelamzion we have is P.Yadin 19, where the deed is made by the father, Judah. As indicated above, Cotton argued plausibly that the object of this deed of gift is not the same courtyard as the one concerned in P.Yadin 20. Nevertheless, the mere fact that Judah made a gift of a courtyard to his daughter is telling. Why make a deed of gift to a daughter who would be heir anyway by virtue of her position as an only child? Could it be that the deed of gift functioned to provide the daughter with part of the estate she could not receive by way of succession? Obviously, there is room to suggest that the daughter would not inherit her father's estate, even in the absence of sons. This could mean that the gifts were used to provide the daughter with property anyway.^[592]

If we assume that Shelamzion proved her right to the courtyard in another way, i.e. that it was not based on her right to inherit her father's estate (including the share in the undivided estate of the deceased grandfather) this has important consequences for our understanding of the law of succession at the time. In the scenario where we accept that Shelamzion's right that is acknowledged was based on the law of succes­sion, the situation is one of heirs opposing an heir: the orphaned sons of Judah's brother as heirs to their father’s share in the undivided estate of the grandfather as opposed to Shelamzion as heir to her father's share in the undivided estate of the grandfather. Nevertheless, the question remains whether the guardian was not acting as representative of the legal heirs to Judah’s estate, that is, whether the nephews are not entitled to the estate of both their own father and Shelamzion's father, while she has to prove her right to part of this estate by a legal act. This would imply that Shelamzion is not heir to her father's estate but that the heirs of her father's brother are actually also Judah's heirs. To put it differently, is it possible that Besas is acting as the representative of Judah's heirs investigating into Shelamzion's right to the courtyard concerned, as the right of an outsider? In that case, the order of succession would be very different from what we assumed above: Shelamzion is not heir to her father's estate, but the sons of his deceased brother are.

That a brother played a part in estate affairs after a man's death has been observed above in both P.Yadin 5 and 13. In both cases I have assumed that the brother was in a business with the deceased and that he managed the business even after the heir had become entitled to half of it by virtue of his right to his father's property. This means that the brother managed a business consisting of both his own property and another's which he either held as a deposit or until the heir came of age. In both cases the part of the business that belonged to the deceased does not belong to the brother but to the heir: the brother has posses­sion but not ownership. This is especially clear in the case of the deposit construction of P.Yadin 5: deposited property passes into the possession of the depositary but not into his ownership. The depositor is owner and can therefore reclaim his property at any time. This is important since in both cases the deceased has left a son. This son is obviously owner of the property, by virtue of being his father's heir.

However, what about a man who only leaves a daughter? What posi­tion does she hold towards her father's estate? I explained above that P.Yadin 20 is not the best example since the courtyard obviously belonged to the grandfather and one could argue Shelamzion was Judah's heir, like the orphans were Jesus' heirs. Nevertheless, it is important, I think, that the dispute was raised by the sons of the deceased's brother. This at least opens the possibility they had a claim to the property of the deceased Judah in their own rights. Could the sons of a deceased man's brother be his heirs?

The idea that Besas is acting as representative of the legal heirs of Judah is supported by what we find in P.Yadin 23-24. Here Besas investigates into Babatha's rights to certain orchards, demanding proof of her that she is entitled to these orchards. If this proof is not delivered he will register the orchards in the name of the orphans. This latter fact implies that the orphans were considered to be entitled to Judah's property on the basis of the law. Their right does not have to be proved by any legal act, but is taken for granted. Babatha's right, on the other hand, requires proof, which suggests that she could only be entitled to her husband's property by way of a legal act. Indeed, we have seen in the instances of P.Yadin 5 and 21-22 that the claims of a widow were not based on law of succession but on her marriage contract or other legal acts. Only by legal acts drawn up during her husband's lifetime could she have claims to his property after his death. In the case of P.Yadin 23-24, Babatha would probably produce proof of her marriage contract and the debt she adduced for her right to sell in P.Yadin 21-22. There, as I mentioned above, she sells the produce of orchards that are not hers (she is not heir) because she is entitled to the orchards on the basis of her dowry and a debt. Although Besas inquires into the registration of the orchards in her name, it is clear he is referring to the same orchards: he can­not be referring to the registration of P.Yadin 16 since Babatha there is clearly registering her own property.^[593] What Besas wants to know is why property that belongs to Judah is registered in Babatha's name. It has plausibly been argued by Cotton that this concerned the practice, known from Egypt, to have women register their claims on their hus­bands' property based on their marriage contract. The debt the husband acknowledged towards his wife in her marriage contract would create a lien on his entire property and the demand to register this fact was made to protect future purchasers of the property.^[594] Besas is thus probably referring to the fact that the property is registered with Babatha's claim on it. If Babatha cannot prove her right to the property (by producing her marriage contract and in this case also her document of debt) the property will be registered in the name of the orphans. Since Besas sim­ply speaks of registry without referring to any legal act that made the orphans owner of the property, it is logical to assume they have become owners of the property on the basis of succession. This means that the registration will not make them owners—they have been owners ever since Judah died—but that the registration will mark them as owners of the unencumbered property. Following Cotton's argument, referred to above, there rested a claim in favour of the wife on all the husband's property. At Judah's death, his heirs became owners of this property by way of law of succession. There is no legal act required for the transfer of ownership but the property is still registered in Judah's name with the claims concerning Babatha on it. Babatha now either has to prove her rights, after which the heirs will have to satisfy her, or she will fail in doing so and be deprived of those rights. The claim the wife has on her husband's property then becomes a defunct right. In either case, the heirs will in the end be owners of the unencumbered property.^[595]

Lewis proposed another interpretation when he argued that the refer­ence to registry in name of the wife is to a practice of registering property the husband bought for the wife during marriage in her name, meaning to have the ownership revert to the husband in case of a divorce or to his estate in case of his death.^[596] This interpretation of the registration in Babatha's name does not influence the argument that the orphans were Judah's legal heirs: if registry that had ownership revert to the estate was concerned, after Judah's death the orphans could also inquire into Babatha's exact rights. In fact, one can imagine that exactly the possi­bility that either Cotton's suggestion or Lewis' was at issue prompted the guardian of the orphans to inquire into Babatha's rights: was there a relationship with dowry and a lien on the property until the dowry was repaid to the widow, or could her rights be based on registry in her name which could be regarded as defunct now that Judah had died? In the first instance Babatha had to be satisfied to clear the property of her claims, in the latter Babatha had no rights to the property whatsoever.

Besas' approach only makes sense if the orphans are indeed Judah's heirs. Why ask Babatha to prove an apparently registered right if the orphans did not have a stronger claim of their own? Only if Judah's death brought the right of the orphans into existence can Besas act as he plans to. This conclusion is supported by the evidence found in P.Yadin 25, which concerns the same dispute. Julia Crispina there summons Babatha to court saying she is holding the property of the orphans to which she is not entitled.^[597] ‘Entitled' here clearly refers to ownership or the pass­ing of ownership. Babatha is holding property that did not pass into her ownership. Since the property is styled as the orphans', it is clear it did pass into their ownership. Obviously, this happened on the basis of succession.

Nowhere in all of this is the daughter even mentioned. What was already inferred by the dispute in P.Yadin 20 is here proven: Judah had a daughter when he died but she was apparently not his heir. This implies that it is indeed likely that the daughter did not have claims to her father's property based on succession, even if there were no sons. Obviously, the brother of the deceased was his legal heir and in his absence, his sons.

A conclusion that the daughter apparently did no inherit since she is not mentioned in the proceedings of P.Yadin 23-24 and 25 could be called a derivative conclusion: such a conclusion is derived from the fact that the daughter is not mentioned; it is not based on direct evidence in the archives. Such derivative conclusions as to the status of the daughter towards her father's estate based on lack of mention of the daughter and the presence of deeds of gift were drawn by Cotton and Greenfield and Cotton in several publications.^[598] As Cotton indicated in the most recent publication on the subject, this type of argument can never be called completely conclusive: there can be other reasons why a deed of gift was made, than the wish to circumvent an exclusion of the daughter based on the law of succession.

However, a derivative conclusion is not necessary as we have direct evidence as to the daughter's status in the papyrus text, I refer to some damaged lines in P.Yadin 24. Lewis suggests as a restoration for line 7: ‘the right of the orphans of his brother to inherit.'^[599] Lewis supposes that Judah had left a document, for instance a will, that had established a right for his brother Jesus to inherit his estate and, as the brother has died, the sons of this brother now have a right to inherit. Consequently, Lewis translates: ‘to inherit... from the name [i.e. the registered ownership] of Jesus their father.’ However, there is no basis for this interpretation in the text. The property concerned clearly belonged to Judah and a claim in favour of Babatha is registered as well. But the property is not registered in the brother Jesus’ name. The existence of a will to this point is unlikely as there is no reference to such a document in the extant text and no wills are found in the archives in general.^[600] What the clause is meant to convey in my opinion is that the orphans have a right to inherit Judah’s estate as the legal successors of their father, i.e. using his right to the estate. What is thus explained here is that the orphans are the legal heirs by way of substitution. This means that the text of P.Yadin 24 states in so many words that the brother of the deceased (and after his death his sons) was indeed his legal heir. As in the cases of P.Yadin 5 and 12-15, where the deceased left a son, a brother of a deceased is obviously not his heir, the only conclusion we can draw from the combined evidence is that sons inherited their father’s estate and in their absence the father’s brothers (and their offspring) did. The presence of a daughter clearly did not change this latter fact.

P.Hever 63 presents an interesting case: the daughter Salome Komaise declares that she has no claims against her mother concerning the prop­erty of her deceased father and her deceased brother.^[601] This means that P.Hever 63 presents us with a case where there is a deceased brother. It is unclear whether he died before or after the father. Neither is it clear in what capacity both mother and daughter act. It is unlikely that the mother had any rights based on intestate succession either to her hus­band’s or her son’s estate and therefore the rights that are acknowledged here were most likely based on gift. We would expect, however, that those rights were acknowledged by the heir(s) to the estate, as we have seen in P.Yadin 20: the legal heirs of the deceased, Judah, acknowledge Shelamzion’s right to a courtyard. In the present instance of P.Hever 63, this would imply that Salome Komaise was heir. This would present the sole instance in the two archives of a daughter being heir to her father's estate, although P.Yadin 20 could also be read to yield that a daughter could be substitute for her father in inheriting a share in the grandfather's estate.^[602] P.Hever 63 could present a case of a daughter inheriting in the absence of sons especially considering the evident fact that the son-heir has died. However, Salome is not explicitly called an heir and the extent of the claims either of the women had to the estate is not clear. Read­ing the text of the document one gets the impression that the daughter declares she has no rights at all to the estate, as she declares she has no claims vis-à-vis her mother regarding ‘the properties left by Levi her late husband and by... los/las her late son and brother of her who agrees.'^[603] Since the property is described from the viewpoint of the mother-wife, it is almost as if she was entitled to these properties. Salome's renuncia­tion of her claims seems to support that assumption. However, it might be true that this renunciation of claims followed a renunciation by the mother as is implied by the phrase ‘and also she Salome....'^[604] Accord­ingly, both documents read together would then yield a mutual recog­nition on the part of both parties that their rights to the property (and probably to specific properties within it) would be acknowledged by the other. What kind of rights were meant remains unclear: the mother might recognize the position of the daughter as heir and the daughter that of the mother as donee, or both might recognize each other's rights as donees.^[605] In the latter instance, however, there would have to be heirs, probably brothers of the deceased husband or their sons but we find no mention of them. The matter seems to have been settled between mother and daughter.

Since the rights of the mother-wife will almost certainly have been restricted to the possibility of rights based on gift, we have to assume the daughter is the heir here. This situation would present difficulties for the overall interpretation of the position of the daughter in absence of sons in the archives. As we have seen above, Shelamzion obviously did not inherit her father's estate, even though no brother was ever mentioned. If P.Hever 63 indeed shows that Salome Komaise was heir to her father's estate (after her brother died), this would provide completely differ­ent evidence. I think it likely to assume that she was heir since there is no mention of other heirs to the estate concerned, given that those would have been expected to be involved in any settlement concerning the estate. The only heirs mentioned in the text are ‘her heirs' in line 9, probably referring to heirs of Salome Grapte, the mother.^[606] From a logi­cal point of view, this phrase seems to be out of place: the most likely heir of Salome Grapte would be Salome Komaise. How can she declare something towards her mothers' heirs if she is that heir herself? Never­theless, it is possible that Salome Grapte had children from another marriage who were her heirs or that she was expected to remarry and bear other children who would be her heirs. It is also possible that the phrase was simply customary, denoting that the claims were renounced not only for the present but for always: in the future they cannot be brought against legal successors by way of succession either. Thus it is ensured that the property concerned really became the unchallenged property of the other party. Because Salome Komaise is only renouncing her own claims to the property concerned, we do not know whether she acted as owner of this property or as claimant (for example, based on a deed of gift).

I also want to emphasize that we do not know the sequence of the deaths in this family: did the son actually predecease his father or did he survive him? To put it differently, are we talking about a daughter pos­sibly inheriting her father's estate in the absence of a son, or is this a case of a mother and sister arguing over the estate of their deceased son and brother?^[607] In this latter instance the content of P.Hever 63 would not be relevant for our investigation into the position of the daughter towards her father's estate. This means that twofold caution is wanted here: first of all it is not obvious that Salome Komaise actually acts in capacity of heir, secondly it is not clear whether the estate of the father is the one concerned, or if the brother initially survived the father and his estate is at issue. Consequently, intriguing as it may be, P.Hever 63 cannot be understood as presenting clear evidence about the daughter's position towards her father's estate.

Order of succession based on documentary evidence

The instances of P.Yadin 5, 20, 21-22, 23-24 and 25 show that the order of succession in the Babatha archive was most likely that the son is legal heir of his father's estate and in his absence the brother of the deceased is legal heir. Whether there is a son or not, the wife never has any claims based on the law of succession. The daughter does not inherit, even in the absence of a son.

What law determined the order of succession found in the documents?

The conclusion reached above is based completely on direct evidence in the documentary sources.

Previously Cotton and Greenfield observed that the daughter did not seem to have a right based on the law of succession, even in absence of a son, when in competition with brothers of the deceased or their sons,^[608] but this conclusion was merely derived from the fact that the daughter plays no part in the dispute between Besas and Babatha^[609] and from the presence of deeds of gift in the archives. The clause in P.Yadin 24, giv­ing the order of succession, plays no part in their argument.^[610] On the contrary, Cotton and Greenfield took it that the presence of deeds of gift made to daughters (like P.Yadin 19) is the indication that daughters had no right to their father's estate based on succession. Cotton wrote about this subject on two other occasions, in the first instance coming to the same derivative conclusion reached in the article written with Greenfield.^[611] However, in the later article Cotton actually retreated from her original position, having become more reluctant about the conclu­siveness of the evidence from the archives, in the form of the presence of deeds of gift, to this point.

While I still suspect that the deeds of gift were indeed intended to bypass the existing law of succession to the benefit of daughters, it now seems to me, in particular on the basis of these newer considerations, that it is not possible to demonstrate this conclusively from the evidence at our disposal at present.^[612]

Indeed, the relation of the presence of deeds of gift with succession strat­egies was denied by Satlow, who maintains that

deeds of gift to women might have secondarily served to circumvent these laws [i.e. laws of succession, JGO] but their primary function had nothing to do with them.^[613]

Obviously, when one merely looks at the presence of deeds of gift in the archives, it cannot be maintained that this presence alone is enough to prove that daughters had no rights whatsoever to their father's estate based on succession. As Cotton and Greenfield had observed the deeds of gift were at times drawn up at the time of the remarriage of the parent who made the gift, that is, with view to the birth of a male heir.^[614] Ann Ellis Hanson has argued for the case of P.Yadin 19, the gift to Judah's daughter Shelamzion, that the gift followed Judah's marriage to Babatha:

If Judah were a recent bridegroom himself making Babatha his wife after early December 127 (16) and before 21 February 128 (17), his hopes for a son from the new union rested, naturally enough, with the young Babatha's proven fertility and the fact that she had already produced a male heir for her first husband.^[615]

Regardless of the fact whether Judah and Babatha married that late (Lewis set the date for their marriage between 122 and 125)^[616] it is impor­tant to note the consequences for reconstructing the law of succession of assuming a relation between gift and a second marriage of the parent. Instead of assuming that the daughter had no rights to her father's estate at all, it implies that she had those rights as long as she was an only child. The gift would then compensate her for the loss of claims based on the law of succession if a male heir was born from the new union. Rivlin painted the legal picture poignantly:

As Cotton rightly hypothesizes, a father may bestow a gift upon his daugh­ter in anticipation of the eventuality that a son may later be born, thus removing the daughter from the process of succession.^[617]

Consequently, assuming a relationship between gift and remarriage of the parent means that the presence of deeds of gift in the archive cannot show that the daughter had no right to inherit her father's estate: if the deed of gift was made with a view to a new marriage of the parent, this could indicate that the daughter had a right to inherit as long as she was an only child.

However, this is a different situation from the one painted in our doc­uments. As I have shown above, P.Yadin 24 explains about the order of succession current at the time: the sons of Judah's deceased brother Jesus are his legal heirs, despite the fact that he has got a daughter Shelamzion. This means that Shelamzion was not her father's heir, although she was an only child.

This conclusion has major consequences for our understanding of the applicable law. Cotton and Greenfield pointed out that the situa­tion where a daughter has no rights to her father's estate at all is unlike Jewish law. After all, they argued, Jewish law does recognize the rights of the daughter to inherit her father's estate in the absence of sons, refer­ring both to the Bible, Num 27, and the Mishnah, m. B. Bat. 8:2, where it is determined that if a man dies without leaving a son, his daughter will inherit his estate. In the Mishnah it is even said explicitly that the daughter is preferred over the brother of the deceased and his offspring. Rivlin wrote:

... a daughter has a normative place of standing in the line of succession, when there are no sons alongside her. This biblical ruling remains unchal­lenged throughout the entire corpus of halachic literature.^[618]

In the light of both Cotton and Greenfield's and Rivlin's argument it seems that the order of succession as clearly laid down in the clause of P.Yadin 24 discussed above, is contrary to what is determined in Jewish law. This clause states in so many words that the sons of Judah's deceased brother were his rightful heirs. This means that Judah's daughter did not inherit, even though she was, at the time of her father’s death, an only child. This means that the possible birth of a male heir would not have meant loss of claims for the daughter: apparently she did not have such claims as an only child either. Therefore, the anticipation of the birth of a male heir at the time of a new union of the parent cannot have been the reason for drawing up a deed of gift at the time of this union. Con­sequently, the evidence in the archive goes against assuming that deeds of gift served to counterbalance the loss of claims of a daughter towards her father's estate at the prospect of the birth of a male heir. The order of succession indicated in the documentary evidence gives the (offspring of) the brother of the deceased precedence over the daughter, even if she is an only child. Does this mean that Cotton and Greenfield were right in suggesting the daughter had no claims to her father's estate whatsoever and that the law of succession was unlike Jewish law? Or is there another way of explaining for the daughter's position towards her father's estate that can account for the order of succession as laid down in the clause of P.Yadin 24, while being in accordance with Jewish law?

In view of the strong influence of Jewish law on the substantive side of the cases found in the archive, as demonstrated in Chapter 2 of this study, it is likely to search for a connection with Jewish law in this instance as well. Roman law clearly cannot qualify here, as sons and daughters there have equal shares in their father's estate: ‘there was never any systematic exclusion of daughters.'^[619] I would even assume that Roman law did not apply, because of the fact that Besas explains about the order of succes­sion in P.Yadin 24. If this order had been obvious to the Roman court, he need not have mentioned it.

'1 he order of succession must then follow some other, probably indig­enous law. The interesting point is why, in assessing a possible connec­tion with Jewish law, both Cotton and Greenfield, and Rivlin, disregard the background and the full extent of the Biblical evidence. To begin with, it should have been observed that in the original order of suc­cession given in Biblical law, there was no room for the daughter to inherit her father's estate: in the absence of a son an inheritance went to the deceased's brothers. The events and the ruling described in Num 27, quoted by Cotton and Greenfield, and Rivlin, particularly served to change this original order of succession in favour of the daughter. m. B. Bat. 8:2, also adduced by them, obviously goes back to this. Nev­ertheless, the conclusion drawn by Cotton and Greenfield that the situ­ation in our documents does not resemble Jewish law, as well as Rivlin's statement—‘Biblical law clearly delineates the order of succession: first the son and daughter, and only afterwards the brothers and their off- spring'—completely disregard what I would call the other half of Bibli­cal law: the developments in the Biblical narrative directly following the change of the daughter's position as described in Num 27. In Num 36 a specific element is introduced concerning the position of the daugh-

ter with respect to her father's estate, which will prove to be crucial for understanding the law of succession as reflected in our documents.

In Num 27:11, it was originally stated that the order of succession given there (including the right of the daughter to inherit in the absence of a son) was a ‘legal requirement.'^[620] However, the rule established is debated in Num 36, as the relatives of the deceased object to the consequences of the daughter's right to her father's estate, in the case of her marriage. It is then determined that daughters can inherit when they have no brother but only if they marry within their tribe. This makes it clear that there was awareness that the marriage of the daughter could affect the family property and that this was unwanted. The property had to stay within a certain defined group, the tribe (obviously, since the whole passage is closely related to the shares the tribes received in the Promised Land). It is logical to assume that this example created an ongoing awareness of the risk involved in having a daughter inherit her father's estate. I do not wish to argue that the rule given in Num 36 still applied in Babatha's lifetime: it would be hard to say how a distinction between tribes would have been made. There is, in the documents, no evidence that people were designated to a certain tribe. This kind of distinction does not seem to have been important. Furthermore, the Mishnaic passage on order of succession, quoted above, does not mention a possible marriage of the daughter in relation to her position with respect to her father's estate. Indeed, it was determined in m. B. Bat. 8:4 that the position of the son and the daughter was the same where inheritance was concerned.^[621] Nevertheless, it was determined in Talmudic times, i.e. three centuries later, that the enjoinder of Num 36 was ‘applicable only to the particular generation to whom the enjoinder was directed.'^[622] This suggests that the enjoinder's possible application was still under consideration.

The link found in Num 36 between law of succession and marriage of the daughter is important for understanding the nature of the deeds of gift in our archives.

As Cotton and Greenfield argued, all gifts found in the Babatha and Salome Komaise archives are made to women, in one instance a wife (Babatha's mother in P.Yadin 7), in the two others a daughter (Shelamzion in P.Yadin 19 and Salome Komaise in P.Hever 64). They presume that on the occasion of the gift to the wife in P.Yadin 7, the husband concerned also drew up a deed of gift in favour of his daughter, Babatha. This deed of gift would then have been the means by which Babatha eventually came to own the orchards she registers as her own property in P.Yadin 16. Indeed it is likely that Babatha became owner of this property by way of a gift, since there were few other ways by which a woman could become owner of real estate at the time. The interesting detail about Cotton and Greenfield's suggestion for this presumed gift to Babatha is that they think it was presented to her on the occasion of her marriage to her first husband Jesus.^[623] The gift to Shelamzion, in P.Yadin 19, is clearly related to marriage of the daughter-donee as well (the gift is drawn up within two weeks after the marriage deed of P.Yadin 18),^[624] and the same was assumed for the gift to Salome Komaise in P.Hever 64.^[625] This is significant for understanding the relationship between law of succession and gift. It need not be true, as Cotton and Greenfield assumed, that daughters could not inherit their father's estate at all and that gifts were used (in various instances) to counterbalance the con­sequences of this rule. On the contrary, I propose that the gifts were made at a specific moment in time, namely at the time of a daughter's marriage, because it was this marriage that occasioned a change in the daughter’s position based on the law of succession, which the gift then sought to counterbalance. Such a change is in fact already implied in the rule laid down in Num 36, adduced above: a daughter who is heir to her father's estate by virtue of her position as an only child can only inherit if she marries within her tribe. If she does not do so, she cannot inherit. This means that this Biblical rule indicates that marriage could change the position of the daughter towards her father's estate. In both the case of Babatha and Shelamzion the gifts were substantial and could thus be seen as ample compensation for loss of claims based on the law of succession.^[626]

If my assumptions above are true, the law of succession at the time would not deny a daughter her right to inherit her father's estate, as long as she was unmarried or married to the next of kin. In such cases, the family estate would stay within the family. However, where the daughter was married to an outsider, her marriage would mean losing her posi­tion towards her father's estate. This would not be unlike Jewish law at all but a consequence of the Biblical rules.

It is true, of course, that the Mishnah does not mention any relation­ship between the law of succession and marriage or marital status of the daughter but it seems to give the daughter a right to inherit over the brothers of the father without further detailing. However, in our docu­ments it is obvious that the daughter-only child does not inherit her father's estate and that she is presented with a gift on the occasion of her marriage. It is therefore worthwhile to pursue the argument for a rela­tionship between marriage, marital status and law of succession further and investigate whether this can be related to a broader oriental context. How did other oriental laws treat the (un)married daughter, specifically in the absence of sons?