III. Conclusions

Overview combining both Mesopotamia and Anatolia/Levant in chrono­logical order

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' heir, 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: 1792-1750 BCE: whether daughters are incorpo­rated in the general term, mdru, heirs, is unclear; specific arrange­ment: unmarried daughter who is 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;

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.

Law of Ugarit: c. 1500 BCE: 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 did probably not have inheritance rights based on intestate succession);

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

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

Law of Emar: 1300-1100 BCE: 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); compare Mesopota­mian Nuzi;

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);

Excursus: Elephantine (Jewish colony in Egypt; 500 BCE): deeds of gift used to grant daughter right to her father's property, issued at her marriage; strong parallel with Judaean Desert material suggesting that the position of the daughter changed upon marriage and deeds of gift were used to counterbalance the loss of rights based upon intes­tate succession.

Conclusions

Concerning the position of the daughter towards her father's estate as it appears from the Babatha archive it was repeatedly argued, foremost by Cotton, that the presence of deeds of gift suggests that the daughter had no right to inherit her father's estate, even in the absence of sons. Evidence to support this assumption was found in P.Yadin 23-24 where the guardian of the minor sons of Judah's brother Jesus asks Babatha to prove her right to orchards that belonged to Judah but are registered in Babatha's name. If Babatha cannot provide evidence to her right to the orchards they will be registered in name of the orphans. As Judah's daughter Shelamzion is nowhere mentioned, Cotton assumed that not she, but the sons of Judah's brother were his rightful heirs. In that case, of sons of a brother having a right to inherit over the daughter of the deceased, Cotton claimed that the law of succession prevailing in the area at the time was unlike Jewish law, as both the Biblical evidence of Num 27 and the Mishnaic ruling to the point, m. B. Bat. 8:2, decide that a daughter can inherit in the absence of sons.

However, the documents from the Babatha archive give direct evi­dence as to the law of succession current among Jews at the time of these documents. P.Yadin 24:7-8 was restored by Lewis and translated to yield: ‘right of the orphans to inherit (?) the said entities from the name [i.e. registered ownership] of Jesus their father.' Obviously, Lewis' interpreta­tion of ‘name' as ‘registered ownership' makes no sense: the orchards belonged to Judah and were registered in Babatha's name, not in Jesus'. What the clause is meant to convey is that the orphans are Judah's legal heirs, being substitutes for their father who was predeceased; one should translate: ‘right of the orphans to inherit the said entities from the name of (i.e. in the place of) Jesus their father.' Consequently, these lines offer us direct evidence as to the order of succession at the time: the minor sons of the brother of the deceased are explicitly described as his heirs.

Where the presence of deeds of gift alone is not enough to support the assumption that daughters did no inherit their father's estate (as Cotton herself admitted in the most recent publication upon the subject), the direct evidence from the restored lines in P.Yadin 24 shows that in the case of Shelamzion, Judah's daughter, this daughter-only child did not inherit her father's estate. The question is of course whether this direct evidence should lead to the conclusion that indeed the order of suc­cession as presented here, where children of a deceased brother inherit instead of the deceased's only daughter, goes against Jewish law.

This need not be the case, as the references to Num 27 and m. B. Bat. 8:2, adduced not only by Cotton but also by Rivlin in response to Cotton's views, should be complemented with a reference to Num 36. There the matter of daughters inheriting their father's estate is connected with marital status: daughters can inherit as long as they marry some­one from their own tribe. This actually implies that the position of a daughter towards her father's estate could change upon marriage: at that moment the daughter could lose her claims based on succession. This addition to the references to Jewish law adduced before is especially sig­nificant in the light of the Judaean Desert material, where, as Cotton and Greenfield had mentioned earlier, deeds of gift to daughters are usually made connected with marriage. Contrary to their conclusion that the daughter had no claim to her father's estate whatsoever, the conclusion should be that a daughter's position towards her father's estate could change upon marriage and a deed of gift could serve to counterbalance the loss of claims.

This conclusion is supported not only by the actual evidence in the archives, but also by the position of the daughter towards her father's estate as it can be gleaned from other ancient eastern laws. Indeed, in almost every system a solution was found to ensure that the share that would go to a daughter-heir would not end up outside the family of the testator.

In general the position of daughters regarding their father's estate in ancient oriental law seems to have been determined by their marital sta­tus: before marriage the daughter held another position than after. This is suggested by material in law codes which only designate the unmar­ried daughter (who will remain that way) heir alongside her brothers (Code of Hammurabi) and supported by evidence from documents (for example Babylonian ones) where the daughters who do share the inheritance with their brothers are all unmarried. Married daughters obviously had no share in their father's estate. For a full overview of all the material discussed in this chapter I refer to the overview of material presented above.

When we look at the documents from the Babatha and Salome Kom­aise archives, we see that the daughters are married at the time of their father's death. This would exclude them as heirs and indeed, in the case of Judah's daughter Shelamzion it is clear that the sons of her father's brother were considered her father's heirs. The best way to ensure that a daughter did receive part of her father's property seems to have been a gift. The time of providing the gift, closely following the daughter's mar­riage, is logical as this marriage changed the daughter's position towards her father's estate. A strong parallel can be found in the archives from Elephantine, where a daughter also receives a right to property upon her marriage, obviously to counterbalance the loss of a right that ceased to exist at the time of the marriage.

The relationship observed in other laws, especially Babylonian law, between dowry and rights of inheritance could suggest that a dowry was considered a share in the father's estate. This could raise the question of why one would still want to use a gift to provide the daughter with part of the estate. In this respect it is interesting to note that the dowry never consists of real estate, while the gifts do.^[778] This could mean that there was a sort of system where a daughter received money, items of cloth­ing and adornment by way of a dowry, while a part of the real estate of their family was given to them by way of gift.

That a gift was apparently used to transfer other objects than a dowry did might have been related to the power the husband could have over the object: the objects in a dowry were in a way subjected to the power of the husband (the extent of this can vary)^[779] while the objects of a gift to the daughter were not (the husband has nothing to do with private property of his wife).^[780] I point, for example, to P.Yadin 16, where Babatha obviously registers her own property. It has been discussed how she obtained this property and it was plausibly argued that she obtained it by way of a gift, perhaps upon her marriage.^[781]

It is in any case clear that the daughter could become owner of vari­ous items in various ways: of movables like money and adornment by way of her dowry and of immovables like orchards or courtyards by way of gift following her marriage.

In general we can say that it appears that a daughter would inherit in the absence of a son and probably even in the presence of a son if she was unmarried and would remain that way. This latter rule is explicitly determined for Babylonian and Assyrian law; whether it would apply to Jews is doubtful: the Biblical rule clearly refers to a situation where there is no son. This would mean that in the presence of a son a daughter, whether unmarried or not, would not inherit. However, the link with marriage seems to be important for the case where the daughter might have a claim, thus in the absence of a son. Apparently she had her claim until her marriage, but after that not anymore. A deed of gift closely following (or in Elephantine shortly preceding) marriage sought to counterbalance this by ensuring the daughter would receive some part of her father's estate anyway.

This interpretation sheds another light on the evidence found in the papyri from the Judaean desert, as it implies that the position of the daughter in the absence of sons as portrayed there does not necessar­ily deviate from what one would expect on the basis of Jewish law. To make such an assessment, it is not sufficient to look at Num 27 alone and the later Mishnaic evidence, but it is essential to take into account the relationship between succession and marriage, as it is found in Num 36 (in addition to Num 27) and is represented in the more general orien­tal context of laws and legal documents from Egypt, Mesopotamia and Anatolia/Levant. In view of this evidence as presented in detail above it is obvious that it is incorrect to conclude that a daughter did not have a right to inherit her father's estate: this depended on her marital status.