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.
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57 thoughts on “Bring Home A Nice Jewish Boy . . . or Else: Illinois Supreme Court Upholds “Jewish Clause””
“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?”
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?
“because the mere fact that the Surrogates Court lays hand on it does not make it a public matter.”
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?
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?
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?
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).
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.
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.
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.
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.
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
“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.
“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.
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.
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.
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.)
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.
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.
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.
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?
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.
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