Siman 277

The בכור takes a double portion of his father's property, in that he takes a portion like two brothers, as if there were another brother. How so? If he left five sons and one of them was a בכור, they divide the inheritance into six parts; he takes a third, and each of them takes a sixth. And if he left nine sons, they divide into ten parts; he takes a fifth, and each of them takes a tenth part. And according to this method of division they always divide. And these two portions that the בכור takes, he takes them as one at a single boundary. And if two other brothers wanted to take at a single boundary, the others could object; but the בכור takes them at a single boundary. And see what I wrote in siman 174.

A בכור who was born after the death of his father—for example, if he left his wife pregnant and she gave birth to twins and one emerged first, or if he left two pregnant wives and they gave birth after his death and one gave birth first—does not take a double portion. Our Sages, of blessed memory, derived this from that which is written: "For he shall recognize the בכור, the son of the hated one," we require that he recognize the בכור, that he see him for one moment while he is alive. Therefore, if even only the head of the בכור emerged during the lifetime of his father, and even if his entire head did not emerge but only his forehead emerged into the air of the world, and his head and body emerged after his death, this one takes a double portion, for he is considered as born. And some say that if he was born while the father was a גוסס, he does not take a double portion because a גוסס is not capable of recognition. And according to this, that which was explained—that when his forehead emerged he is considered as born—you only find it when he was healthy or ill at the emergence of the forehead and afterwards died suddenly; but ordinarily, when he is born after his death, he was certainly a גוסס at the time of the emergence of the forehead [סמ"ע].

It is written, "and the firstborn son shall be to the hated one," from which we learn that from the time of his coming into the world he must be a "son." Therefore, a firstborn who was born a tumtum and was torn open and found to be a male does not take a double portion. And so our sages, of blessed memory, said that an ordinary son who was born a tumtum and was torn open and found to be a male does not diminish the portion of the birthright, as it is said, "and they bear him sons... and the firstborn son shall be," for a son who is not a "son" from the time of birth is not considered at all regarding the matter of diminishing the portion of the birthright. How so? Suppose he had a firstborn son and three ordinary sons, and one of the ordinary ones was torn open and found to be a male; they divide the inheritance into four parts as if this one who was torn open does not exist at all, and the firstborn takes a fourth of the inheritance for his birthright portion, and the three-fourths they divide into four parts and they all take—the ordinary ones, the one torn open, and the firstborn—equally, for the decree of the Torah is only regarding the matter of the birthright portion. And so too, a son born after the death of his father does not diminish for the firstborn his birthright portion, for "and they bear him sons" is written, meaning those born to him during his lifetime. But when he was born even one day old or one hour old, if he was alive during the lifetime of the father, he diminishes the birthright portion. And even if before the division the son born during the father's lifetime died, nevertheless he is considered as living regarding the matter of the birthright. How so? Suppose he had a firstborn and an ordinary son and this one who died; they divide the inheritance into four parts as if this deceased one were alive, and the firstborn takes a fourth for his birthright, and the three remaining parts the firstborn and the ordinary son divide equally. And the reason is because the birthright portion the firstborn inherits from the father, and at the time of the father's death only a fourth part of the assets was coming to him, but his ordinary portion he surely inherits also from his deceased brother. And it appears to me that if it is clear that his months were not completed, he does not diminish the birthright portion even when he lived a little during his father's lifetime, for he is like a mere nefel. But if there was a doubt whether his months were completed or not, he diminishes even according to the opinion of the Ra'avad in section 8, because they are certain in their ordinary portion, and he in his birthright portion according to this value is a doubt, and a doubt does not remove from a certainty [it appears to me].

It is written: "For he is the first of his strength, to him belongs the right of the firstborn." We have learned from this that a firstborn for inheritance depends on the father and not on the mother; for if he was the firstborn to the father, even if the mother had previously given birth to several offspring, nevertheless, since he is the first of the father's strength, he takes a double portion. This is not the case regarding a firstborn for the priest concerning the matter of pidyon haben, which depends on the mother and not on the father, for the Torah made it dependent on the "opening of the womb." And even if the father had previously sired several sons, nevertheless, since he is the firstborn to the mother, the father is obligated to redeem him. It emerges that regarding a firstborn for inheritance, we do not pay heed to the mother, and regarding a firstborn for the priest, we do not pay heed to the father. And there are further distinctions, as will be explained:

In Yoreh Deah siman 305 it was explained that if the firstborn was preceded by a non-viable birth of eight months whose head emerged alive and he retracted his head and then this firstborn emerged, or a nine-month birth whose head emerged even dead and afterwards this firstborn emerged, he is not a firstborn for the kohen because he is not a "peter rechem," except for an eight-month birth whose head emerged dead, which does not exempt the one who follows it from primogeniture. However, regarding a firstborn for inheritance, he does not remove the one who follows him from primogeniture unless it was a nine-month birth and its head emerged alive. But a nine-month birth whose head emerged dead, or an eight-month birth even if its head emerged alive and even if it emerged entirely, does not remove the one who follows him from primogeniture, as it is written: "the first of his strength" (reshit ono), from the language of mourning (aninut), and we expound: this is one whose father's heart grieves for him, and for a non-viable birth his heart does not grieve. And likewise for a nine-month birth whose head emerged dead, for that which is said "the first of his strength" means that there was not born prior to this a viable offspring that emerged alive into the atmosphere of the world. Therefore, a nine-month birth that extended the majority of its head alive, the one who follows it is not a firstborn. And this which we said, that an eight-month birth whose head emerged alive or even was born entirely, the one who follows him is a firstborn for inheritance, this is specifically regarding a certain non-viable birth where it is recognizable by its form that its formation was not completed. But as long as we do not see in it a certain defect, the one who follows it is not a firstborn for inheritance, for it is nothing but a doubtful non-viable birth, and the majority of offspring are not non-viable births [Taz].

And all the more so one who miscarries something like a domestic animal, a wild beast, or a bird whose facial features resemble a human form, or a sandal—which is a piece of flesh similar to a bull's tongue and made in the shape of a sandal—or a placenta, or a formed gestational sac, or if it emerged limb by limb, the one who follows it is a בכור for inheritance for the reason we explained, even though it is not a בכור for the kohen. And it is a fortiori in the case of one who miscarries a gestational sac full of blood, or water, or colors, or one who miscarries something like fish, grasshoppers, creeping things, or crawling things, or one who miscarries on the fortieth day, that the one who follows it is even a בכור for the kohen, as is written there. But a caesarean birth and the one who follows it, and a viable caesarean birth, both of them are not בכורים, neither for inheritance nor for the kohen. The first, because it was not born according to the manner of birthing through the womb, as it is said, "and they bear him children," that it must be born according to the manner of birth; and all the more so it is not a בכור for the priesthood, for it did not open the womb. And the second, because another viable child preceded it and its father's heart is faint over it; and likewise for the priesthood, even though for the womb it is a בכור, yet since it is not a בכור regarding offspring, a בכור for one matter is not a בכור, for we require that it be a בכור for the womb and for offspring (Bekhorot 47b).

If he had sons while he was a gentile and he converted, he does not have a thereafter a bechor for inheritance, even if the conception and birth of the first ones were not in sanctity, for the sons he fathered while being a gentile are attributed to him. However, an Israelite who had a son from a maidservant or a gentile woman, since the offspring is attributed to her and is not called his son, as written in Even HaEzer siman 4, therefore the one born after him from an Israelite woman is a bechor for inheritance. And a gentile who cohabited with a daughter of Israel, where the offspring is also attributed to her and not after the father as written there, if he converted afterward and a son was born to him from an Israelite woman, he is also a bechor for inheritance [Netivot HaMishpat]. And it appears to me that even according to the Rambam, who requires regarding procreation that his sons also convert, but if he converted alone he has not fulfilled procreation as written there siman 1, nevertheless regarding the removal of the status of bechor, he admits that even if he converted alone, the one born during his conversion is not a bechor for inheritance [and so it appears from his wording, for in the second chapter of Nachalot he did not write "and they converted" as he wrote in the fifteenth chapter of Ishut].

If the firstborn was a mamzer, he takes a double portion, as it is said: "But he shall acknowledge the firstborn, the son of the hated one," this refers to one who is hated in her marriage, having been married in transgression. And it is unnecessary to say that if he was a kohen and married a divorcee or a chalutzah, that the son born from her, if he is the firstborn, takes a double portion, for he is not a mamzer. For one cannot say that what the Torah wrote, "the son of the hated one," means literally hated, that his father does not love her; for it is obvious that in such a case it would not be necessary to specify, for would it enter one's mind that because he does not love his mother he should be removed from his birthright? Furthermore, if so, the Torah should have informed us of more, such as when he hates the firstborn himself. Rather, it is certain that the Torah spoke regarding a prohibition of marriage.

One whose status is in doubt to us, whether he is a firstborn or an ordinary son—for example, if his two wives gave birth and one was a firstborn and the offspring became mixed in a manner that it is impossible to recognize who is the firstborn—he does not take a double portion. And how do they act? They write a power of attorney to one another, for behold, one of them is a firstborn in any event, and together they take the portion of the firstborn. And this is specifically when they were recognized for one hour from the birth and afterward became mixed; but if they were never recognized, as they were mixed upon their emergence from the womb—for example, if they gave birth in one hiding place—they do not take the portion of the firstborn, as it is said: "And it shall be, the son of the hated woman is the firstborn," that he must be, in his coming into being, a certain firstborn for at least one hour. And all the more so if she gave birth to twins and it was not recognized at the time of their emergence from the womb, neither by the mother nor by the midwife, who emerged first, that they do not have the law of a firstborn even though one of them is certainly a firstborn [it appears to me].

A woman who did not wait three months after the death of her husband or after her divorce and married another, and gave birth at seven months, and it is not known whose child it is—whether he belongs to the second and was born at seven months, or he belongs to the first and was born at nine and she was pregnant when she married the second—this child does not inherit at all, neither from the first nor from the second, for the heirs of each one push him away saying, "You are not the son of our father," and the burden of proof is upon the claimant. And the one born after him to the second [husband] does not take a portion of the firstborn, for the others will say to him, "You are not the firstborn, and the doubtful one is the firstborn." And it does not avail them to write an authorization to one another with the claim that one of them is certainly the firstborn, since the firstborn was never identified. And even if he seized [the property], we remove it from him, just as in the case of a doubtful firstborn animal where if a kohen seized it, we remove it from his hand [Taz]. And it appears to me that even according to the Rambam, who holds that if a kohen seized it we do not remove it from his hand, as he wrote in Yoreh Deah siman 315, he would admit that here we remove it, because they are certain heirs and he is a doubtful heir, and a doubt does not remove from a certainty, as in the case of a doubt and a yavam regarding the property of the grandfather in Even HaEzer siman 163.

A woman who gave birth to two males and one emerged first, or who gave birth to a son and a daughter and the son emerged first, he is the bekhor. But who testifies for us regarding this? Thus the sages said: Three are trusted regarding the bekhor: the chayah—and she is the midwife—and his mother, and his father. The chayah is only trusted immediately when she gave birth; if the chayah said "this one emerged first," she is trusted to establish him as the bekhor. And his mother is trusted throughout the seven days of the birth until the day of the milah, for then the father brings him out to enter him into the covenant of milah. And his father is trusted forever, for the Torah trusted him, as it is written: "For he shall recognize the bekhor, the son of the hated one," which implies that he shall make him known to others as the bekhor [Kiddushin 74a].

It appears to me that the midwife is only believed when there is no challenge against her, but if there is one who contradicts her, and even if a woman contradicts her and says that the second one is the firstborn, the midwife is not believed. For the midwife's credibility applies also to a kohen, a levi, a yisrael, and a mamzer, and we hold that when there is a challenge, she is not believed, as is written in Even HaEzer siman 4. And even though in every place where the Torah believed one witness, he is like two and one witness is not believed to disqualify him, in truth the midwife's credibility is only because most of the time it is impossible otherwise [Ran there]; for at the time of birth, most of the time there is only the midwife and the mother, and the mother is mostly unable to know who emerged first, as she is preoccupied with her pangs and birth-throes. And it is not similar to every credibility of one witness in a matter that is destined to be revealed, such as an agunah to testify that her husband died. And even though in any matter that has neither a presumption of permission nor a presumption of prohibition one witness is believed, as is written in Yoreh Deah siman 127, that is regarding prohibitions, but in matters of money and lineage we have not found that one witness should be believed [and the question of the Chelkat Mechokek on the Ran is answered]. Rather, her credibility is because it is impossible without her, and therefore when someone comes and contradicts her, she is not believed. And all the more so when the father or the mother contradict her, she is not believed [Taz there]. And specifically when they contradict her on their own, but if they contradict her to say that she herself said about the other child that he is the firstborn and she contradicts them, she is believed, according to the law of "a certain sage purified the blood for me" and he contradicts her [it appears to me]. And from the Rambam in chapter 15 of Issurei Biah, it is implied that the reason for the midwife's credibility is because it was not established. And in truth, the midwife's credibility is explicit in the Torah regarding Tamar, where the midwife established Perez as the firstborn, and so it is implied in the Yerushalmi and Kiddushin [chapter 4]. And furthermore, we learned from Tamar that even if one extended his hand and the midwife made a sign to know that he is the firstborn, she is believed afterward to say that this one withdrew his hand and the other emerged first, as it was with Perez and Zerach. And nevertheless, it is not difficult that one witness is believed to contradict her since the Torah believed her, for it can be said: specifically in a place that requires two witnesses, such as a married woman, a sotah, and an eglah arufah, and the Torah believed one, he is indeed like two and one is not believed to contradict him; but in this case where the midwife is believed, two are not required by the core law since there is no presumption here at all, and by law one witness is believed, and therefore one is also believed to contradict him [and although from Tosafot at the beginning of the third chapter of Keritot it is implied not like our words, nevertheless in the Nimukei Yosef, parashat HaIshah Rabbah, he wrote according to this reasoning in the name of the Ritva].

In the Gemara it is explained that the midwife is only believed as long as she has not left the house of the woman giving birth, but if she left and returned, she is not believed. All the poskim omitted this, and I do not know why. And even though it is possible to say that this is included in what they wrote, that she is believed "immediately," nevertheless they should have specified. Furthermore, the Rambam in Issurei Biah there, and the Tur and Shulchan Aruch in Even HaEzer there, did not even write the language of "immediately." And the Tur wrote that as soon as she left from under her hand she is not believed. And it is possible that in Even HaEzer there, as long as they did not raise a challenge, she is believed even if it is not immediately, but I do not know why. [See Be'er Sheva there at the end of subsection 60, and Korban Netanel chapter 4 of Kiddushin sign 6, and in the book Beit Meir he brought in the name of the Ritva a reason for this: that to recognize who came out first she is not believed unless it is immediately, but not regarding family lineage, see there]. And in Even HaEzer siman 4, section 44, we explained this, see there.

The matter is simple: just as one is believed to contradict the midwife, so too is one believed to contradict the mother. And what is the law regarding the contradicted offspring? Neither of them can extract the portion of the firstborn, and they shall write a power of attorney to one another. And regarding the power of attorney, it certainly is effective, for they were identified for one moment.

The father is always believed, for the Torah has granted him credibility. Even if the father said regarding one who was not established at all as his son, "He is my son and my firstborn," he is believed. Likewise, if he said regarding one who is established for us as his firstborn that he is not the firstborn, he is believed. However, if he said once regarding one that he is the firstborn, he cannot afterwards say regarding another that he is the firstborn. And some say that even within the time of a speech-act he is not believed [Beit Yosef in the name of Nimukei Yosef], for the Torah did not grant him the power of recognition after recognition. Nevertheless, I do not know a proper reason for this; is it not so that in the entire Torah, within the time of a speech-act is like the speech itself [and it is not similar to what was written in siman 279, section 7, unless he makes one a mamzer]?

And specifically when he was not established as his son, meaning that it was not known to us; but if it was established among us that he is not his son, he is not believed to say that he is his son. For whatever the case: if the establishment is by way of witnesses, he is not believed to contradict them, and if the establishment is by way of himself, he is not believed to retract, as has been written. But when the establishment was by way of women or those disqualified from testimony, the father is believed to contradict them, since the Torah believed him. And that which was explained, that if he said regarding one established as the firstborn that he is not the firstborn that he is believed, this also deals with such a case; or even if witnesses testified that he was born from his first wife, and through this he was established in the birthright, he is believed to say that the second is the firstborn and the first is a mamzer, for the Torah believed him even to make him a mamzer [Sma], but not to say that he is from him and was not born first.

If witnesses heard from the father who said, "So-and-so my son is my firstborn," he takes a double portion. But if he did not say "my firstborn" but rather "So-and-so my son is a firstborn," he does not take a double portion, for perhaps he meant a firstborn to his mother. And if it is known that he is certainly not a firstborn to the mother, he takes a double portion, for certainly his intention was regarding himself [it appears to me]. And so too if he said words that prove his intention was that he is a firstborn to the father according to the matter being discussed, he takes a double portion. And our sages, of blessed memory, said: It happened with one who said, "So-and-so my son is a firstborn and his saliva heals eye ailments," he takes a double portion, for it is common in the mouths of people to say that the saliva of a firstborn to the father heals and not a firstborn from the mother; and similarly in other matters. And the same law applies if the firstborn died and he mentioned concerning him in his eulogy, "Alas for my firstborn son," and even though he did not intend for the matter of his portion in the birthright, nevertheless he has testified that he is a firstborn, and his offspring take a double portion in the properties of the grandfather. And if the father became mute and they need to know who is the firstborn, they examine him in the manner that they examine for gittin, as was explained in Even HaEzer siman 121, and if he gestured or wrote that this is his firstborn son, he takes a double portion.

An incident occurred in the days of the Geonim regarding brothers who needed to divide their father's inheritance, and one said to the second, "I am a firstborn," and the second denied him, saying, "Perhaps a child was born even before you were born and died." The claimant brought a document in which it was written, "So-and-so was born on the 4th of Sivan in the year 14," and they produced his mother's ketubah and its date was the 2nd of Kislev in the year 13, such that the time is not sufficient to give birth to two children. Nevertheless, they ruled that one does not rely on the recorded time of birth with the time of the ketubah, for it is not a will, and it is possible that it is an error or written untruthfully. However, if they found the handwriting of his father where he wrote, "So-and-so my son is my firstborn," he takes a double portion. And similarly, if he was established before the world as a firstborn, such as if he fasted every Erev Pesach and it is known that his mother was his father's first wife, it is a complete presumption that he is a firstborn. We do not fear that perhaps this one's father committed an act of zenut while he was unmarried, for why should we presume him to be a wicked person unless he was established as such? But the mother alone is not believed unless witnesses testify according to her words. Even if there are two groups of witnesses, where one group testifies that he is the first to open the womb for this woman but they do not know if his father had another wife before he married this one, and one group testifies that this woman is his first wife but they do not know if he is the first child—since at any rate it is clarified through them that he is a firstborn, he takes a double portion. The concept of "a matter and not half a matter" does not apply to this when he was somewhat established as a firstborn, for it is merely a disclosure of the matter. Aside from this, according to what I wrote in siman 36, this is not "half a matter"; see there.

Just as regarding the portion of the simple heirs, the son or the daughter or their offspring or the offspring of their offspring inherit their father's portion, so too regarding the matter of the portion of the firstborn. Therefore, one who had two sons, a firstborn and a simple heir, and they died during his lifetime and left offspring—the firstborn left a daughter and the simple heir left a son—the simple heir inherits a third of the grandfather's property, which is his father's portion, and the daughter of the firstborn inherits two-thirds, for we consider it as if the firstborn were alive. However, regarding that which came as an inheritance to the father of the firstborn after the death of the father, the firstborn does not take the portion of the firstborn because it is prospective property, and it will be explained in siman 278.