The thing I best recall from my Property class was the odd pale-green tile ceiling. It evidently fascinated me so much that most of the actual law conveyed is now a blur.
So I don’t have much in the way of scholarly response to this Illinois Supreme Court decision, and wouldn’t have noticed it if it hadn’t been the subject of a blog post by Eugene Volokh… but it’s interesting.
It involves a trust made by Max and Erla Feinberg. Putting aside some interim provisions not particularly interesting the key aspect of their bequest was: everything goes to the grandchildren when they die, except that any grandchild who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be considered dead as far as the trust goes, and get nothing.
This provision was challenged, and the trial court upheld the challenge. The appeals court agreed with the trial court, saying that the provision was void on public policy grounds. “Under Illinois law and under the Restatement (Third) of Trusts, the provision in the case before us is invalid because it seriously interferes with and limits the right of individuals to marry a person of their own choosing.”
The Illinois Supremes disagreed.
So… debate? I assume the Illinois Supremes are right on the law (as, indeed, they have to be, since they are the final arbiters of what Illinois law means). But should legislators now step in to change this law? Should we restrict testmentary freedom when it seeks to invade choices like marriage?
I think I agree with the supreme court in this case. The only ‘right’ that is interfered with is the right to inherit money from someone who doesn’t want you to get it.
As odious as it is to me to try to influence your grandchildren’s marriages, I have to agree with the Supremes. If it’s your money, you should be able to give it away as you see fit - or not.
The biggest problem doesn’t seem to be public policy but of interpretation. I assume that the bequest is a bit more specific, but if not, how does one define “of the Jewish faith”? Does that mean a practicing Jew or does being born into Judaism count? Does it have to be an Orthodox Jew or can a Reform Jew qualify? I didn’t read the link to the actual opinion, but it wouldn’t surprise me if the Illinois Supreme Court, whether stated or not, gave extra berth to this clause given that Jewishness is both a religious and ethnic concept. As a minority with a long history of persecution, Jews may have more of a stake in ensuring the survival and continuation of their culture and religion, thus making this particular provision not contrary to public policy.
This is as opposed to the thread title concerning conservative Catholics, since they are not a distinct group and it would be difficult to measure what exactly constitutes a conservative Catholic. Or Catholic for that matter, since that could include a Marionite Christian or a few other small denominations that still use the name “Catholic” in some variation.
They could give it to the Home for Ancient Cats, and nobody could say anything. Is it actually required to have public policy to ensure that anyone can marry a person of their choosing? Or is it none of the governments business?
No one’s right to marry outside a certain faith was being abridged; they were still perfectly free to marry anyone they like. The only thing that was being abridged was their desire to get ahold of grandma and grandpa’s money under conditions that grandma and grandpa didn’t want them to get it.
Frankly I’m surprised that the case had to get all the way to the Illinois Supreme Court before the proper ruling was made.
Fair questions. I kinda glossed over this in my summary, but to answer you in a bit more detail, the trust gave Erla a limited testamentary power of appointment over the distribution of the assets, and she exercised that after Max died to specifically name the people getting distributions. At the time Max prepared his estate plan, his grandchildren were too young to marry. But Erla, surviving Max, executed the plan as he wanted it done, and the court addressed the issue of whether his desire in the abstract was valid. So far as I can tell, none of the would-be beneficiaries contested the basic issue of whether they had a spouse that was incorrectly classified as non-Jewish for the purposes of the trust.
I think the first three responses above fail to appreciate the law’s disfavor for trying to control the lives of your relations from beyond the grave. “Their money, their rules” certainly is a pithy maxim, but then again, so is “We all gotta go sometime.” And they should note: It’s never been held that you have an unfettered right to dispose of your property however you wish at death. From the formalities commanded by the Statute of Wills to elective shares to the cy pres doctrine, all testamentary gifts are closely regulated by the state.
As it happens, I encountered this principle in both Property and Estates & Trusts. An Ohio court in Shapira v. Union National Bank confronted this same problem, and, as I recall, held similarly to the Illinois Supreme Court. In fact, the testamentary condition in Shapria was even more onerous than the one here: there the beneficiary had to many a Jewish woman within seven years of the testator’s death or the gift would lapse.
The court found that it was merely a partial restriction on marriage and thus enforceable. It noted in dicta that it might hold differently if the condition were severely restrictive (i.e., if only a very few people belonged to the class of eligible spouses) or if it required divorcing a current spouse. Shapira was decided in the 70s, but we live in enlightened times–Query: if the beneficiary in Shapira were gay, what public policy is advanced by conditioning the inheritance upon his marriage? Is it reasonable to treat the beneficiary that way? And his beard?
Lastly, I’ll observe that when it comes to testamentary clauses that restrict racially mixed marriages, courts are quite keen to excise those clauses. And rightfully so, in my opinion. Were I King of the Illinois legislature, I would make it known that marriage conditions for testamentary gifts are to be of no effect. You get your whole lifetime to influence your descendants’ life choices, and that’s all you get.
Check out Shapira v Union National Bank, an Ohio case in which someone died and left three children. The will stated that all three of them were to get a third of the estate, but the parts for the two boys were conditional on them marrying Jewish girls within seven years after Mr. Shapira’s death. The condition was upheld.
It was also upheld in New York (in re Silverstein’s Will), and Massachusetts (Gordon v Gordon), but found invalid in Pennsylvania (in re Keffala’s Estate) and Illinois (in re Feinberg).
Well yes and no. People have the right to give their money to whoever they choose and for whatever reasons they choose (anti-terrorism legislation aside).
But this is slightly different. They are using the state to assist in that distribution, through the establishment of a trust. It’s settled law that you cannot control the future of your property for ever after you die. So disallowing a trust for violation of public policy isn’t that far out there.
That said, I’d probably side with the IL SC here. This isn’t a requirement from a centuries old trust. The grandchildren were alive when the trust was created, so overall it sounds reasonable to enforce it.
What if the terms of the will were secret and withheld from the beneficiaries? Maybe Grandma and Grandpa wanted to see if the kids would “do the right thing” on their own? So Grandboy marries Mary Catherine instead of Sarah, then five years later, the Grandfolk are killed in a car accident. If he didn’t know that his inheritance was contingent on him marrying a Jewish girl, could he still have a case?
I have no idea, except to say there’s almost certainly no Due Process requirement for a beneficiary to be made aware of the terms of a bequest before it vests. Apart from that, I got nuthin. (Except a comment on the aforementioned green tile ceiling).
I imagine that we will see this line of cases repeated in a new context, as intolerant decedents try to condition bequests on a requirement that the beneficiary marry a person of the opposite sex.
From across the lake in Ontario, I expect that such a testamentary term would be found void for being contrary to public policy.
Why? To keep it short, have a look at a couple of examples provided by Canada’s leading trusts expert and current Ontario Court of Appeal justice, Eileen Gillese:
“Example: X leaves all her estate in trust for her son on condition that he never converts from Catholicism to Judiasm.” “The condition is intended to preclude the son from freely chosing the religion he wishes and will be held contrary to public policy.”
“Example: My property is to be sold and the proceeds held in trust, but the property may not be sold to Jews.” “This condition will be deemed discriminatory and void for public policy reasons.”
If that isn’t enough, have a look at it from a restraint of marriage position. When it comes to marriage, a trust term that prohibtits marriage entirely will fail, but a term that resticts a person from marrying a particular person will usually succeed. In the OP’s matter, the restriction is not against a particluar person, but rather is against a huge class of persons based entirely on religion.
When combining the restiction of religion aspect and the restriction of marriage aspect, I expect the clause would fail. Am I certain that it would fail? No, however, I would happily take such a case in Ontario for a beneficiary, but I would probably either duck representing an estate trying to uphold the term or require one hell of a large retainer.
The Province of Ontario ain’t in the USA (at least that’s what they tell me), so ymmv.
Probably would. Check out Re Fox Estate, which didn’t really deal with this question directly (a executor of an estate diverted property that the will said should go to her son, because she was unhappy he married a non-Jewish girl.), but I believe there was also conversation about this hypothetical.
Also, look at the Leonard Foundation Trust case (the provisions of Leonard’s will setting up the Leonard Foundation were that the scholarships it distributed should go to “a British Subject of the White Race and of the Christian Religion of the Protestant form”, and that provision was, in 1990, found to be unacceptable).
(Sorry, I was reading the appellate court decision)