specially concurring:
I completely concur with Justice Cunningham’s majority opinion. I write separately to express the bases of my disagreement with Justice Greiman’s dissent. The dissent asserts that “Max and Erla had a dream,” and that they “seek to preserve their 4,000-year-old heritage by providing that upon their death, a grandchild who married outside the Jewish faith shall be deemed to have predeceased the testators.” 383 Ill. App. 3d at 1000. Unfortunately, this noble defense of “the Jewish Clause” is refuted by the appellants themselves. As the appellants point out in their reply brief, “If Max were truly trying to prevent marriages outside the Jewish faith, Michael asserts he would have included his children [the appellants] as being subject to the Jewish Clause.” Further, “if a Feinberg grandchild were to convert to Catholicism there is no restriction on that grandchild receiving his or her distribution under the Max Trust B.”
The purpose of the instant suit is succinctly stated in the appellants’ opening brief:
“The plain meaning of the Jewish Clause indicates that for purposes of the administration and distribution of Max’s Trust, each of Aron, Aimee, Lisa and Michele and their respective descendants should be treated as deceased and therefore not eligible to receive any benefit from Max’s Trust. Pursuant to Erla’s Power of Appointment, the specific bequests of $250,000 due to Aron and Michele would be distributed to their father, Michael and the similar bequests due Aimee and Lisa would be distributed to their mother, Leila.”
Simply put, Leila and Michael wish to deprive their own children of their inheritance. In support of this position, the appellants point out, “The forfeiture to the parent will allow the beneficiary to potentially inherit the funds from his or her parent.” If Michael and Leila’s actions in instituting this suit and prosecuting this appeal are any indication of their future intentions toward their children, this potential inheritance does not rise to the level of even a forlorn hope.
The first thing any reader of the majority opinion and the dissent should note is the age of the cases cited. The majority cites one case less than 50 years old, In re Estate of Gerbing, 61 Ill. 2d 503, 337 N.E.2d 29 (1975). The dissent cites two: In re Estate of Laning, 462 Pa. 157, 164, 339 A.2d 520, 523 (1975), and Shapira v. Union National Bank, 39 Ohio Misc. 28, 33, 315 N.E.2d 825, 829 (1974). The Laning court relied on the Restatement (Second) of Trusts §§62(f), (g) (1959). The Shapira court similarly cited the Restatement (Second) of Trusts §62(h) (1959). Two cases cited by the dissent relied on the Restatement (First) of Trusts: United States Bank of Portland v. Snodgrass, 202 Or. 530, 537, 275 P.2d 860, 868 (1954), which cited section 62(g) and Gordon v. Gordon, 332 Mass. 197, 206, 124 N.E.2d 228, 234 (1955), which cited Annotation, Conditions, Conditional Limitations or Contracts in Restraint of Marriage, 122 A.L.R. 7 (1939).
In the instant case, the circuit court relied on the language of the Restatement (Third) of Trusts §29, Comment j, Illustration 3, at 64 (2003), as found in the majority opinion. The Restatement (Third) of Trusts has previously been cited as persuasive authority by this court in Peck v. Froehlich, 367 Ill. App. 3d 225, 229, 853 N.E.2d 927 (2006), citing Restatement (Third) of Trusts §50, Comment e(4), at 273-74 (2003).
While the dissent frames the issue as being whether Max and Erla could make testamentary dispositions “to preserve their 4,000-year-old heritage,” the position it espouses could just as well result in the courts being required to enforce the worst bigotry imaginable. As the dissent points out, the court in In re Liberman, 279 N.Y. 458, 18 N.E.2d 658 (1939), cited as persuasive authority cases which upheld conditions not to marry “Papists” or Scots. Logically, the dissent would uphold the “Jewish Clause” in the instant case if it had provided that any of Max and Erla’s grandchildren would lose their bequests if they had married someone who was Jewish or black or a member of any other group Max did not like. I agree with the dissent that the majority of jurisdictions which have addressed this issue have come down on the side of upholding testamentary conditions which are referred to benignly as “partial restraints.” However, the vast majority of these cases were decided more than 50 years ago and none of them considered the Restatement (Third) of Trusts.
In Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948), the Supreme Court relied on the fourteenth amendment in striking down privately executed restrictive covenants prohibiting real property from being used or occupied by any persons except those of the Caucasian race. In doing so, Chief Justice Vinson noted, “These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.” Shelley v. Kraemer, 334 U.S. at 13, 92 L. Ed. at 1180-81, 68 S. Ct. at 842. I am aware that the Shapira court rejected the applicability of Shelley to cases such as the instant one, holding:
“In the case at bar, this court is not being asked to enforce any restriction upon Daniel Jacob Shapira’s constitutional right to marry. Rather, this court is being asked to enforce the testator’s restriction upon his son’s inheritance.” Shapira v. Union National Bank, 39 Ohio Misc. at 31, 315 N.E.2d at 827.
However, I believe that this rationale may be a distinction without a difference.
I am also aware that the restrictive covenants considered in Shelley ostensibly were to be enforced in perpetuity and that under the Rule Against Perpetuities, a noncharitable trust generally can last for no more than three generations, so a testator’s imposition of limitations can usually only be enforced for 75 years. J. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill. L. Rev. 1273, 1280. However, I believe that requiring courts to enforce such restraints even for only 75 years is too much. One of the decisions relied upon by the dissent illustrates the difficulties which face courts in attempting to enforce certain “partial restraints.” In In re Kempf Will, 252 A.D. 28, 297 N.Y.S. 307 (1937), the court interpreted the following testamentary condition:
“The bequest of a legacy on condition that the beneficiary ‘shall be brought up and educated in the faith of and according to the Roman Catholic Religion, otherwise this paragraph of this, my last will and testament, shall cease and be void and of no effect.’ ”
The court held that the beneficiary failed to comply with this condition even though he had been baptized as a Catholic, attended Catholic Sunday school and attended mass at various Roman Catholic churches with “reasonable regularity” for years. The beneficiary had missed attending his first communion due to illness and never received communion. The court found that this failure violated the testamentary condition and, therefore, the bequest to the beneficiary was denied.
In the instant case, the appellees question what would occur if one of the grandchildren initially married a non-Jew but subsequently married a Jew. Under the “Jewish Clause” the grandchild would be deemed to be deceased as of the date of the first marriage. The question arises as to whether the grandchild would be “resurrected” upon marrying the Jewish spouse. While the question is only theoretical, it is a very likely scenario. I believe that courts are ill-suited to decide this issue or the issue presented in Kempf.
As quoted in the dissent, “ ‘It is generally held in this country that partial restraints on marriage are valid unless unreasonable ***.’ Gordon v. Gordon, 332 Mass, at 206, 124 N.E.2d at 234.” 383 Ill. App. 3d at 1001. While the Restatement (First) and (Second) of Trusts explained that restraints such as the instant “Jewish Clause” were once considered reasonable, the Restatement (Third) of Trusts now provides that they are no longer reasonable. While many jurists, notably the Justices of the United States Supreme Court who adhere to the principle of following the “original intent” of the framers of the constitution believe in a static jurisprudence, the authors of the Restatements do not. I believe the Restatement (Third) of Trusts §29 (2003) is correct and I concur in affirming the circuit court’s well-reasoned decision.