The Illinois Supreme Court has upheld the so-called “Jewish Clause” in a will of a deceased Chicago dentist who wanted to disinherit any children or grandchildren who failed to marry a Jew. Max Feinberg’s will will result in four grandchildren being disinherited.
Feinberg allowed grandchild to marry a non-Jew so long as the person converted within a year. His wife Erla could have gotten around the restriction but decided to enforce it against the grandchildren.
To make matters worse for the family, two of the grandchildren accused the Feinbergs’ daughter, Leila Taylor, of misusing $1.6 million in funds for her own benefit. Taylor then sought to dismiss the complaint by noting that the grandchildren had no standing because they married non-Jews.
The Illinois Supreme Court ruled “[b]ecause a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.”
I agree with the decision, even though I find the views of Feinberg and his wife to be offensive and filled with prejudice. While I grew up in a devout Catholic family, I (and one of my brothers) married Jewish women and there was never anything but joy that we found the “right girl.” Our parents were more concerned about our happiness and felt that God would want the same thing.
The family insists (here) that the objection to the will is simply a case of “political correctness.” I would call it something a bit more than that. Most parents and grandparents are more concerned about their children finding someone who they love and allowing them to find their own path to a fulfilling faith. However, these parents have a right to impose their own idiosyncratic demands on their children, so long as it complies with the criminal law and such property doctrines as the Rules Against Perpetuities. It was Max’s money and he should be allowed to control its distribution.
Max Feinberg, therefore, succeeds on a posthumous basis to show that he had every right to be prejudicial and cruel to his descendants.
For the full story, click here.
I do not think that this is such a bad precedent. This was this man’s money and if you want to be paid to sing the song, then you must note the score and play along with the way that the band. If you don’t know the music you music still learn to dance to the tune. In this case it is worth noting that the granddaughter is accused of spending 1.6 million and then the clause was enforced against her for not marrying a Jew or the spouse converting within one year. It appears that she directed the band and did so poorly.
More power to Max.
AY/JT:
“This was this man’s money and if you want to be paid to sing the song, then you must note the score and play along with the way that the band.”
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That was the exact rational used to enforce race based restrictive covenants in deeds. We had the good sense to prevent our judicial system from being a co-conspirator in race-based discrimination in Shelley v. Kraemer (1948). Justice Vinson wrote: “[A]ction of State courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment.” Maybe the Canadians will catch on when it comes to irrational religious based discrimination.
I am also surprised to learn that JT agrees with this indecent proposal. It may be the decedent’s money, but I find official sanction of his religious stupidity offensive and unlawful. Let him be a bigot without state intervention or state protection.
Mespo,
With that rational that you are using please help me get what I am entitled to then. My family uses the discretionary trust rational with an antiterrom clause.
I’m in the mespo camp on this one. It’s analogous to an unconstitutionally restrictive covenant that serves no valid purpose but religious discrimination. I think it’s a question ripe for Art. III review. If the restriction had been more broad, say that the descendant must be married to take, I’d have no issue. But to make one give up the freedom to choose their own mate based upon solely religious grounds is counter to the Right of Free Exercise. I won’t even go into how against the spirit of the DOI this is. It’s a terrible precedent. In addition, by permitting religious based discrimination in the devolution of property you are creating an environment ripe for Lemon challenges. The descendant has rights too and while alienation of some rights as a condition of taking are fine, one that could be characterized as prima facie in violation of the 1st Amendment is not.
How is it fair to let the blind blatant prejudices of the dead dictate the religious and spiritual lives of the living let alone their marital lives?
Simply, it’s not fair. The world belongs to the living.
The state protects the rights of bigots to speak and think as bigot, effectively protecting a bigot’s right to be a bigot. This will is like a contract, with a dead person. If the grandchildren want the money then they should abide by the (legal) terms of the contract.
Mespo,
This has NOTHING to do with deeds and race based covenants or anything else that affects society. This is a Last Will and Testament.
There is nothing more bizarre about the conditional bequest here than specifically disinheriting children for no reason at all and adding a no-contest clause.
If the testator wanted to add a conditional predicate as to why he was disinheriting certain children, e.g. disinherit all his children who married outside the race, then, simply put, all the ‘laughing heirs’ in society have no standing whatsoever to say anything about the matter.
nal:
The state protects the rights of bigots — sometimes. They may not be restricted in their speech if they pose no threat to public order (say, yelling racial epithets in volatile situation) and may not slander or libel. No one’s rights are absolute, and I choose to stand with Justice Vinson and draw the line here. It is not an “either-or” choice.
Bob,Esq:
I have no problem with the discriminatory nature of the bequest; people are free to be fools or bigots (and to suffer the consequences flowing therefrom). I have serious problems with the State enforcing their malevolence. Had no objection been raised to it by the beneficiaries, I would not advocate the state rushing in to void it. I object to using the power of the state to effect the purposes of a cold, dead, discriminatory, hand.
Aye, Bob. It’s an enforcement issue. Being a bigot is their choice. Using the mechanism of state to enforce is, at best, excessive entanglement.
And we restrict testator’s intent all the time. Codicils or restrictions that are manifestly illegal, like requiring a revenge killing to take, can be and are routinely quashed by probate courts all the time while retaining the residual intent of the testator. That a restriction has a Constitutional basis for claim should be no different than if the restriction has any other valid rationale to be voided for “public policy” reasons (e.g. the stated murder example).
I agree with Mespo that the rational used by the decedent and accepted by the Illinois Supreme Court is the same as those used in race based restrictive covenants in deeds. For years after it was illegal in Illinois to enforce such onerous deeds, the restrictive covenants were still showing up on Torrens Certificates in Cook County and on Title searches throughout the suburban Chicago area. The use of the state to enforce this discrimination is detrimental to society as a whole and in this case, detrimental to family relations. This family will never be the same because the testator wanted to discriminate against non-Jews.
Mespo: “I have serious problems with the State enforcing their malevolence.”
Once again, in a probate setting, the State, i.e. the ‘laughing heirs’ of the Estate, have NO STANDING to intervene to void a bequest. The ONLY way the State might have any say would be to void any illegal bequest; e.g. a meth lab or a deed to land subject to a covenant and restriction against (name the violation of the 14th Amendment) RUNNING WITH THE LAND.
What about a person that comes from a wealthy Jewish family and a member of the family converts to Catholicism. They then are cut off so to speak. Are you saying that this would be voidable enforcement and against public policy in Texas? Try and get a court to hear it is what I can say. The last contestation that I am aware of took place from June 1976 to January 1990.
AY,
There may be some weird rules in the hill-billy states, but in New York, the ONLY people who can alter the bequests of a testator are the spouse (under the spousal election rule) and an heir with standing to contest the entire will.
If a testator, as a general rule, being of sound mind and body, under no duress, and fulfilling all the other elements of executing a valid will, may cut off his entire family, save his current spouse, and do whatever he wants with his estate.
This case represents nothing more than a condition precedent on a bequest; the condition not being met resulting in denial of the bequest and omission from any portion of the estate–most likely coupled with a no-contest clause. That is not illegal for obvious reasons stated by the court above.
A testator; not ‘If a testator’
Buddha:
“Aye, Bob. It’s an enforcement issue. Being a bigot is their choice. Using the mechanism of state to enforce is, at best, excessive entanglement.”
Absent spousal election or an intestate proceeding there is no ‘right to inherit’ anything in the presence of a valid will to the contrary.
rafflaw: “I agree with Mespo that the rational used by the decedent and accepted by the Illinois Supreme Court is the same as those used in race based restrictive covenants in deeds.”
No, it’s not the same thing.
http://jonathanturley.org/2009/09/27/bring-home-a-nice-jewish-boy-or-else-illinois-supreme-court-upholds-jewish-clause/#comment-81899
Bob,
There is in Louisiana. They have forced heirs, a leftover from the Napoleonic codes.
And all heirs still have their Constitutional rights. Is there a better reason to abrogate the will of the testator than to protect the Constitutional rights of the descendants? If a black man said in his will that to take his descendants would have to revert to a period of slavery to pay off a debt, would you find that permissible?
Perhaps the State should just raise the inheritance tax to 100% to protect all inheritors from any economic injustice.
Buddha: “If a black man said in his will that to take his descendants would have to revert to a period of slavery to pay off a debt, would you find that permissible?”
No more than the bequest of a meth lab.
I know this will sound very Old World, but I’ve often wondered why our legal culture is so insistent on the freedom of testators…as if they had no obligation to the human beings they bring into the world. Why should the state leave it up to the testator whether he/she provides for his/her offspring?
Bob Esq.,
I was not suggesting that they are the same thing, but the mentality behind a repressive restrictive covenant is the same mentality as a testator making a bequest contingent upon the grandchild marrying within the faith. To my mind that type of bequest flies in the face of the public policy of freedom of religion.
The arguments regarding the application or enforcement of restrictive covenants or illegal bequests seem misapplied to a private bequest. AS other comments have stated, one is allowed to be a bigot in ones own home and I chalk that up to a matter of privacy. The enforcement of the will in this case seems to be no more than a statement by the State that the State will not intervene in a private matter. So long as no provision of the will reaches public matters (the business will be sold publicly and equal shares distributed to each heir except that the business can only be sold to Jews) the State IMO has no standing to disturb the wishes of the testator.
rafflaw: “To my mind that type of bequest flies in the face of the public policy of freedom of religion.”
And all I’m saying is that level of analysis is inapplicable to probate proceedings since the testator is as free to disown his children during life as to disinherit them after.
lottakatz: “So long as no provision of the will reaches public matters … the State IMO has no standing to disturb the wishes of the testator.”
Ding, ding, ding!!! (Duck drops down, Groucho smokes his cigar, etc.)
And jews are always ready to call others racist. You should investigate the marriage laws in israel.
The jews there say that a jew who marries a gentile is ‘missing’.
Pure unadulterated racism.
Bob, Esq.,
I understand the point that you are making and I understand wht the law allows the testator to do or not to do. I am merely suggesting that to allow any testator to do what was done in this case is violative of public policy, in my opinion. I am only stating what I would like the law to be in this kind of situation.
lottakatz:
“So long as no provision of the will reaches public matters (the business will be sold publicly and equal shares distributed to each heir except that the business can only be sold to Jews) the State IMO has no standing to disturb the wishes of the testator.”
*************
The point some of us tried to make is that enforcement of the discrimination by the courts IS a public matter by and through the actions of a public official, namely, the judge. That’s what Justice Vinson was saying in Shelly, and that’s what’s so insidious about the Court’s decision here.
“The enforcement of the discrimination by the courts IS a public matter by and through the actions of a public official, namely, the judge.”
I’m not sure why this disturbs you so, Bob. You seem to have no issue with other instances of frustration of testamentary intent as a matter of public policy. Surely the Constitutional rights of the heir are an important public policy concern (even if you don’t think valid reason for quashing parts of a will). I know what my basis is and it’s the participation of a judge and the probate courts. If devolution of property could be done without state sanctioned processes, I’d be less apt to jump all over this kind of provision as although it may be stupid but it was indeed the testator’s will. But that barn door is long-time open and not likely to close given the hundreds of thousands of pages of probate law and cases out there. I’m not looking to unnecessarily (important word) restrict testamentary intent. I have no issue with devolution of property in general. However, that isn’t the case here. An heir is being told they have to surrender a Constitutional right to practice their religion as they perceive it in order to make some dead guy “happy”? Even though he was a Jew, I’m thinking that would even make Groucho raise his eyebrows.
Not much room for progress in this area of the law it seems:
Hodgson v Halford (1879) 11 Ch 959 : gift conditional on the beneficiary not marrying a person who was not to profess the Jewish religion and not born a Jew
Perrin v Lyon (1807) 9 East 170; 103 ER 538 : gift conditional on the beneficiary not marrying a person born in Scotland or of Scottish parents
Jenner v Turner (1880) 16 Ch 188 : gift conditional on the beneficiary not marrying a domestic servant, or a person who had been a domestic servant
Mespo: “The point some of us tried to make is that enforcement of the discrimination by the courts IS a public matter by and through the actions of a public official, namely, the judge. That’s what Justice Vinson was saying in Shelly, and that’s what’s so insidious about the Court’s decision here.”
I have Jewish in-laws that were disowned by their father during life; as in never spoke to them while he was alive for reasons similar to this case. Guess what Mespo, if the father left a valid will disowning his children for the same reasons as the testator above, no public policy may barge in to the proceedings and sing how the world is made of sunshine and lollipops; no matter how much you may want it to be; because the mere fact that the Surrogates Court lays hand on it does not make it a public matter.
Buddha,
See what I wrote to Mespo.
Further, I’m pretty sure I learned in T&E that there are no constitutional rights at play in a probate proceeding.
Absent a spousal election or voiding a will via contest to precipitate an intestate proceeding or enforce a prior will, NONE OF WHICH RELY ON CONSTITUTIONAL RIGHTS, there’s no standing to challenge and no right to inherit.
I’ve been wrong before. Show me a case where alleging constitutional right precipitated the type of outcome you’re looking for; we’ll call it the sunshine and lollipops right.
Read the opinion! It distinguished between giving the grandchild a vested interest in a trust, which would be forfeited if he/she married a non-jew (which would violate public policy and be unenforceable) and an outright gift to the grandchildren who, at the time of grandma’s death, happened to be married to Jewish spouses. In the trust example, the “dead hand” of the grandparents would be objectionable because it would exert control over religious and marriage decisions going forward (a condition subsequent). Because it was an outright gift, it was a condition precedent and, therefore, enforceable.
BobEsq:
I agree with you on this, if Mespo and Buddha could prevail then the door is open to invalidate all wills. And replace the wishes of the deceased with public policy in the distribution of estates. It is bad enough that the state taxes estates let alone the possibility that distribution could be based on some state employee’s idea of social justice.
Not being a lawyer it seems pretty clear to me, but then I don’t know all the loop holes and old case law.
Byron,
Reductio ad absurdum doesn’t suit you especially when I said no such thing.
What I said was I see no problem with frustrating a testators illegal intent as long as the residual intent is retained. Probate courts do just that every day. What neither of you want to acknowledge the 400# gorilla in the room that this kind of restriction is simply religious discrimination. I say it could be ripe for consideration for review as a Constitutional matter based on a negative impact to a right therein. You’re seemingly relying upon that time worn chestnut: “We’ve always done it that way.”
If I’ve said it once then I’m repeating myself but “We’ve always done it that way” is one of the dumbest reasons in human history to do anything. We’d all be living in mud brick huts by that rationale. But that’s just absurd. Isn’t it.
Unless either of you can explain why religious discrimination – prohibited by law in almost every other circumstance – is not a proper area for legal intervention or subject to review related to testamentary artifacts when it acts against a specific right, not some vague quasi-right like privacy, but RELIGION. One of the biggies. It’s the right to free exercise AND the freedom from establishment of a state religion. Not either or. If it was something simply statutory? I might not be so willing to abrogate the testators will. However, if it’s in the Constitution, I still think it’s important despite being pissed on for the last 8 years (with little sign of abatement of flow).
And as far as case law goes, eh, I don’t have Lexis anymore and I’m too lazy to go the library for just this. But I submit that many a precedent started its life as a challenge to “We’ve always done it this way.”
So what’s it going to be? Maximum liberty for the living or maximum fiat of the dead?
BIL,
So should the government be able to intervene if the father makes unequal gifts to his children while he is still alive and tells them why?
What’s the difference?
Bob, Esq:
“because the mere fact that the Surrogates Court lays hand on it does not make it a public matter.”
\
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That’s contrary to the holding in Shelly v. Kramer. Vinson wrote:
“That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court. That principle was given expression in the earliest cases involving the construction of the terms of the Fourteenth Amendment. Thus, in Commonwealth of Virginia v. Rives, 1880, 100 U.S. 313, 318 , this Court stated: ‘It is doubtless true that a State may act through different agencies,-either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another.’ In Ex parte Commonwealth of Virginia, 1880, 100 U.S. 339, 347 , the Court observed: ‘A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way.’ In the Civil Rights Cases, 1883, 109 U.S. 3, 11 , 17, 21, this Court pointed out that the Amendment makes void ‘state action of every kind’ which is inconsistent with the guaranties therein contained, and extends to manifestations of ‘state authority in the shape of laws, customs, or judicial or executive proceedings.’ Language to like effect is em- [334 U.S. 1 , 15] ployed no less than eighteen times during the course of that opinion. 13
Similar expressions, giving specific recognition to the fact that judicial action is to be regarded as action on the State for the purposes of the Fourteenth Amendment, are to be found in numerous cases which have been more recently decided. In Twining v. New Jersey, 1908, 211 U.S. 78, 90 , 91, 16, the Court said: ‘The judicial act of the highest court of the state, in authoritatively construing and enforcing its laws, is the act of the state.’ In Brinkerhoff-Faris Trust & Savings Co. v. Hill, 1930, 281 U.S. 673, 680 , 454, the Court, through Mr. Justice Brandeis, stated: ‘The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government.’ Further examples of such declarations in the opinions of this Court are not lacking. 14
One of the earliest applications of the prohibitions contained in the Fourteenth Amendment to action of state [334 U.S. 1 , 16] judicial officials occurred in cases in which Negroes had been excluded from jury service in criminal prosecutions by reason of their race or color. These cases demonstrate, also, the early recognition by this Court that state action in violation of the Amendment’s provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute. Thus, in Strauder v. West Virginia, 1880, 100 U.S. 303 , this Court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to the colored defendant in that case. In the notice and opportunity to defend, has, Ex parte Virginia, supra, held that a similar discrimination imposed by the action of a state judge denied rights protected by the Amendment, despite the fact that the language of the state statute relating to jury service contained no such restrictions.
The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defen, has, of course, long been regarded as a denial of the due process of law guaranteed by the Fourteenth Amendment. Brinkerhoff- Faris Trust & Savings Co. v. Hill, supra. Cf. Pennoyer v. Neff, 1878, 95 U.S. 714 .15
In numerous cases, this Court has reversed criminal convictions in state courts for failure of those courts to provide the essential ingredients of a fair hearing. Thus it has been held that convictions obtained in state courts under the domination of a mob are void. Moore v. Dempsey, 1923, 261 U.S. 86 . And see Frank v. Mangum, 1915, 237 U.S. 309 . Convictions obtained by [334 U.S. 1 , 17] coerced confessions,16 by the use of perjured testimony known by the prosecution to be such,17 or without the effective assistance of counsel, 18 have also been held to be exertions of state authority in conflict with the fundamental rights protected by the Fourteenth Amendment.
But the examples of state judicial action which have been held by this Court to violate the Amendment’s commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process. 19 Thus, in American Federation of Labor v. Swing, 1941, 312 U.S. 321 , enforcement by state courts of the common-law policy of the State, which resulted in the restraining of peaceful picketing, was held to be state action of the sort prohibited by the Amendment’s guaranties of freedom of discussion. 20 In Cantwell v. Connecticut, 1940, 310 U.S. 296 , 128 A.L.R. 1352, [334 U.S. 1 , 18] a conviction in a state court of the common-law crime of breach of the peace was, under the circumstances of the case, found to be a violation of the Amendment’s commonds relating to freedom of religion. In Bridges v. California, 1941, 314 U.S. 252 , 159 A.L.R. 1346, enforcement of the state’s common-law rule relating to contempts by publication was held to be state action inconsistent with the prohibitions of the Fourteenth Amendment. 21 And cf. Chicago, B. & Q.R. Co. v. Chicago, 1897, 166 U.S. 226 .”
Should I believe you or my lying eyes?
puzzling:
“So should the government be able to intervene if the father makes unequal gifts to his children while he is still alive and tells them why?
What’s the difference?”
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Not to step on Buddha’s toes, but no one is suggesting that the state intervene to make everything fair; most of us are suggesting that the court not be used to validate and enforce provisions in wills contrary to the manifest public policy of the United States.
Would you have the same objection to the state voiding a bequest that goes like this:
“I hereby devise and bequest all of my estate, whether real, personal or mixed, to the Al Quaeda terrorist network to be used as its sees fit in its war against the United States and any of its allies.”
It is certainly the manifest intention of the testator and his intention is sacrosanct is it not?
puzzling,
Unequal isn’t the issue. Illegal or possibly illegal is.
Mespo,
Read the opinion! The Illinois Supreme Court specifically considered and rejected the argument based on Shelley v. Kraemer.
mespo,
Giving money to terrorist organizations is illegal. However, there is nothing illegal about me giving money to any of these children or grandchildren. Therefore, there is nothing wrong with the father giving money, or not doing so. I’d like to set the Al Quaeda argument aside for the moment.
I think the strongest argument is that this is analogous to the government enforcement of race restrictions on real estate sales, as you referenced with Shelley v. Kramer.
However, I think there are key differences: there was a relationship between this father and his children and grandchildren, and this was an immediate test for qualification. It could not shape future behavior, like marriage. I am not an attorney as you know by now, but I see this is as a very different basis than a future restrictive covenant to unrelated persons decided in Shelley v. Kramer.
occasional visitor:
“The Illinois Supreme Court specifically considered and rejected the argument based on Shelley v. Kraemer.”
******************
Well they did spend an entire two paragraphs on a little issue like equal protection and dismissed Shelly with the breezy statement that is had been “widely criticized for a finding of state action that was not “ ‘supported by any reasoning which would suggest that “state action” is a meaningful requirement rather than a nearly empty or at least extraordinarily malleable formality.” (I expend more words notifying my newspaper boy that I am on vacation next week).
So there, that cinches it.
This is lazy analysis and bad logic. Criticism is not the same as overruling precedent and I believe the US Constitution still applies in “The Land of Lincoln,” though after Blogo, I have my doubts.
puzzling:
“Giving money to terrorist organizations is illegal. However, there is nothing illegal about me giving money to any of these children or grandchildren.”
*************
You plainly see the trees but miss the forest. Discrimination based upon religious differences is illegal when the government enforces it, though it may not be illegal when the individual does it–no matter how boorish. The Court in Shelly went to great pains to say that while the underlying activity might pass due process muster, the actions of the state in enforcing the common law right might still violate the 14th Amendment:
“But the examples of state judicial action which have been held by this Court to violate the Amendment’s commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process.”
mespo,
So it’s not illegal for private parties to enter into a discriminatory contract, it’s only illegal for the government to enforce it?
What other legal contracts should the government not enforce?
puzzling:
“So it’s not illegal for private parties to enter into a discriminatory contract, it’s only illegal for the government to enforce it?”
***************
Memberships in truly private clubs do this all the time.
What other legal contracts should the government not enforce?
*********************
When they offend the manifest public policy of the state. For example, if it can be proven that a “private” club is actually a public accommodation, and thus subject to state and federal anti-discrimination laws, the club’s discriminatory policies must yield to the state’s interests. Gambling contracts are likewise unenforceable contracts in many states due to their underlying illegality.
mespo/Buddha:
I must be missing something, having read the above I still agree with BobEsq and Puzzling.
This is a strictly private matter between family members. What if I tell my daughter she can no longer drive my car because she has a tattoo of Jesus on her right calf (she is over 18)? Is the state going to intervene on the issue of separation of church and state, I am inhibiting her free exercise of her religious beliefs?
It is not illegal to drive nor is it illegal to put a tattoo on your body. I don’t disagree that the grandfather is a creep, anyone that loves their children and grandchildren would not do this, I would call it evil even. But it is not compelling the children to marry people of Jewish faith, they have a choice. Had I been this mans son, I would have told him to go take a flying leap at the moon and never spoken to him again. (To ask the state to give you balls is to have none.) That is the proper redress not state intervention.
The state cannot right all wrongs, if it did it would surely infringe someones rights.
Byron,
I see what all parties are saying. I see it from the side of a potential beney and I also see it from the side of the state (Buddha, messpo). I believe that if the will/trust had stated that they could only marry Jews, it would have been set aside. It gave the ability to marry non Jews who converted within 1 year. This too is a feat to do. It may take as long as one year or longer depending upon the rabbi.
I believe that this was treated as a discretionary trust. It was up to the trustee to determine if they met the qualifications set out by the settlor. Since they did not they sued. I also remember reading that the granddaughter that was disinherited is accused of misusing 1.6 million. This may have had something to do with it as well.
Greed, which knows no particular loyalty was the silent role player in this case. As you should be aware, if it was a 4 corners approach with the will it may have been upheld. But alas most contests do not have all of the same factors as in Shelly.
I do see it from both sides as a professional and as a victim of competing family rivalries. I have accepted, so far my lot in life so to say.
Byron:
I think you fail to draw the distinction between a discriminatory bequest (the will restriction) and enforcing that bequest (the suit). Buddha and I have tried to say that we have no legal issue with the testator making such a stupid and boorish provision, we just see no requirement that the court enforce that provision. You may consider this a right without a remedy, but isn’t the refusal by courts to enforce gambling debts the exact same thing? The Courts need not be complicit in discrimination based on religious affiliation.
Mespo:
But if the court doesn’t enforce the provision isn’t that the same as negating this mans wishes?
Do they refuse to enforce gambling debts in states where gambling is legal?
Byron:
But if the court doesn’t enforce the provision isn’t that the same as negating this mans wishes?
************
No, the family is free to comply with the bequest and hence the testator’s intent free from any state intervention. The state has no duty to enforce agreements contrary to it’s public policy.
It’s interesting that we are still talking about this case.
Two points that haven’t been made yet:
1. I see a lot of people on this site and elsewhere saying that Dr. Feinberg “disinherited” his grandchildren. He did not. You cannot disinherit a person who would not have been an intestate heir had you died without a will. Under Illinois law, Dr. F’s only heirs were his two adult children. So long as they both survived (and both are still living) his grandchildren had absolutely no legal expectancy. The opinion makes this clear.
2. Second, there is a wide range of opinions expressed her as to what the public policy of the State of Illinois SHOULD BE with regard to such provisions in wills. The court made it clear that it was not MAKING public policy, but FINDING the State’s public policy in its existing statutes and long-standing case law (cases that had been around long enough that the legislature could have changed the law if it had wanted to). The court clearly found that the Probate Act strongly favors freedom of testation and that there was nothing in existing case law to prohibit the Feinbergs from favoring the grandchildren who married within their faith (so long as the provision did not operate going forward to limit access to lawful marriage or to encourage divorce). This IS the public policy of the state of Illinois, according to a unanimous supreme court (4 Dems and 3 Reps). Anyone who wants to change this public policy ought to address their arguments to the legislature.
ov,
1) Personally I assumed the nature of intestate succession (in all states but Louisiana) was a given, but the clarification is most welcome.
2) I don’t see this as incompatible with the above. Changes in law can come about by both legislation or by judicial review. That some issues naturally come to one branches attention over another branch is simply the Separation Doctrine in action. The legislature is as imperfect as the judiciary but that is part and parcel of why they offset each other. The balance of weaknesses and strengths. Different functions, different priorities and methodologies. All part of the checks and balances. How many laws have been changed over the years because of a lawsuit? Need I say more than Ford Pinto? Heart of Atlanta Motel v. U.S.?
“This IS the public policy of the state of Illinois, according to a unanimous supreme court (4 Dems and 3 Reps). Anyone who wants to change this public policy ought to address their arguments to the legislature.”
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What if, as I propose, the manifest public policy of the State of Illinois differs from the manifest public policy of the United States as announced in Shelley? Any bets on who wins then. For a preview, read Loving v. Virginia.
Loving v Va, oh yeah. Then read the Georgia case”Bowers v. Hardwick, 478 U.S. 186 (1986), was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and held that such laws are unconstitutional. In overruling Bowers v. Hardwick, the 2003 Court stated that “Bowers was not correct when it was decided, and it is not correct today.”
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They can really stick it to ya sometimes.
Loving, Bowers and Lawrence.
The classics.