New York – Our Daf (Bava Basra 158a) discusses the issue of a husband and wife dying and it is not known who died first. A question is raised by Dayan Weiss (Minchas Yitzchok 1:69) regarding a case where a number of members of the same family had also died. If the wife died last, then the inheritors of the wife get the estate. If the husband died last then his inheritors receive the estate.
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The Gemorah concludes that in a case where it is just the husband and the wife the estate is split evenly. Our case, which involved a family murdered by the Nazis yimach shemam, dealt with the sons being murdered as well.
The question therefore arises as to whether the same law in our Gemorah, of a fifty fifty split would still apply. Why would it make a difference? Because if any of the sons were to have died last then the relatives of the husband would still inherit the estate. If there were three sons then there is an eighty percent probability that the woman did not die last. Perhaps then, the estate should not be split up fifty fifty!
Dayan Weiss zatzal ruled, however, that it is still a fifty fifty split. We do not look at statistics beforehand and only on the question itself – when adjudicating Jewish law.
This ruling has enormous significance in regard to other halachic questions involving a statistic. When is the Sheailah to be posed – at the beginning of the question or at the end? For example, the issue of teisha chanuyos teaches us that if one nonkosher hot dog got mixed up with five kosher ones we may eat four of those hot dogs.
From a mathematical point of view eating all four of the five would create a strong statistical probability that non kosher was eaten.
Nonetheless, we do not pose the statistical shailah then only at the beginning when we had a Rov – a majority.
The reasoning of the “hot dog” case is actually not necessarily the same. One of the Rishonim (I forget which) actually allows one to eat all five of the hot dogs at once, since at this point, based on the Halacha of Rov, the Torah has said that all five are now considered Heter. This is different from the case of Yerusha, where the ownership is still not clear.