dissenting:
Max and Erla Feinberg 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, but if they have complied with the restrictions, they are to immediately receive their legacy.
The majority opinion cites three Illinois cases which are wholly inapposite to the case at bar. In these three cases, Ransdell v. Boston, 172 Ill. 439, 50 N.E. 111 (1898), In re Estate of Gerbing, 61 Ill. 2d 503, 337 N.E.2d 29 (1975), and Winterland v. Winterland, 389 Ill. 384, 59 N.E.2d 661 (1945), the testators provided that their descendants would not get the principal of the estate if they remained married to their then current spouses. Clearly this was an effort to direct the legatee-descendants to obtain a divorce. The Illinois courts held such a provision to be against the public policy of our state.
Unlike the several cases that the majority opinion cites relating to divorce, the trustees here are not required to hold the property during the lifetime of descendants, after the death of the testators.
The majority opinion in a single paragraph acknowledges that there is precedent to the contrary in other states. Examination of cases from other jurisdictions, however, indicates that we would be in the minority if we failed to uphold Max and Erla’s limitation.
In Gordon v. Gordon, 332 Mass. 197, 124 N.E.2d 226 (1955), the Supreme Court of Massachusetts upheld a provision revoking gifts to beneficiaries who married persons not born in the Jewish faith. The court observed: “It is generally held in this country that partial restraints on marriage are valid unless unreasonable. [Citations.] Thus, testamentary gifts conditioned on the beneficiary not marrying a specified individual have been upheld.” Gordon, 332 Mass, at 206, 124 N.E.2d at 234, citing Turner v. Evans, 134 Md. 238, 106 A. 617 (1919); Graydon’s Executors v. Graydon, 23 N.J. Eq. 229 (1872); In re Proving the Will of Seaman, 218 N.Y. 77, 112 N.E. 576 (1916); Osborne’s Petition, 21 Pa. D. & C. 293 (1934); Pacholder v. Rosenheim, 129 Md. 455, 99 A. 672 (1916) (holding that “a requirement *** not marrying outside the Jewish faith was also good”).
In re Liberman, 279 N.Y. 458, 464, 18 N.E.2d 658, 660 (1939), the New York appellate court observed “[Conditions not to marry a Papist *** or a Scotchman or not to marry any but a Jew have also been held good.” Although the Liberman case invalidated a provision requiring the beneficiary to marry only with the consent of his mother, brother or sister, the court did so not because the provision was intended to restrain the beneficiary from marrying anyone other than a Jewess but, rather, because it found the consent feature invalid.
Similarly, in In re Weil’s Estate, 124 Misc. 692, 209 N.Y.S. 779 (1925), In re Salomon’s Estate, 156 Misc. 445, 281 N.Y.S. 827 (1935), and In re Rosenthal’s Estate, 204 Misc. 432, 123 N.Y.S.2d 326 (1953), the respective courts found that similar provisions of forfeiture were valid. In upholding a provision in the testator’s will prohibiting beneficiaries from inheriting should they “marry a person of a different religious faith from mine,” the Weil court stated, “It is well settled that a condition in general restraint of marriage is void and inoperative as against public policy. [Citation.] On the other hand, however, a clause in special restraint of marriage, such as prohibition of marriage to a person outside of a particular faith or to a designated person, is in the ordinary course valid.” In re Weil’s Estate, 124 Misc. at 695, 209 N.Y.S. at 781.
The issue in the case at bar is not necessarily a Jewish issue. A similar rule obtained in United States Bank of Portland v. Snodgrass, 202 Or. 530, 275 P.2d 860 (1954), where the Oregon Supreme Court upheld a limitation that the legatee had “not embraced, nor become a member of, the Catholic faith” (Snodgrass, 202 Or. at 534, 275 P.2d at 862) and stated that it agreed with the conclusion set forth in American Law Reports that the “ ‘weight of authority, however, is to the effect that a testator has the right to make the enjoyment of his bounty dependent on the condition that the recipient renounce, embrace, or adhere to a particular religious faith’ ” (Snodgrass, 202 Or. at 584, 275 P.2d at 868, quoting A.S.M., Wills: Condition That Devisee or Legatee Shall Renounce, Embrace, or Adhere to Specified Religious Faith, 25 A.L.R. 1523, 1524 (1923)). In support thereof, the Snodgrass court cited Barnum v. Mayor & City Council, City of Baltimore, 62 Md. 275 (1884), Mitchell’s Lessee v. Mitchell, 18 Md. 405 (1862), In re Paulson’s Will, 127 Wis. 612, 107 N.W. 484 (1906), as well as a number of English cases.
Gifts which are conditioned upon children being brought up and educated in the faith of and according to the Roman Catholic religion have been held as valid. In In re Kempf Will, 252 A.D. 28, 32, 297 N.Y.S. 307, 312 (1937), the New York Supreme Court, after observing the federal constitution’s first amendment, stated:
“These constitutional guarantees of religious freedom are limitations upon the power of government, not upon the right of an individual to make such testamentary disposition of his property as he may desire provided always that positive law or public policy is not contravened. We find nothing in the condition here in question which deprives the petitioner of freedom of conscience as to his religion; nor is it against public policy. *** Having chosen to make the petitioner an object of his bounty, the testator had the right to burden his gift with conditions.”
A similar provision was upheld by the Delaware Court of Chancery in Delaware Trust Co. v. FitzMaurice, 27 Del. Ch. 101, 31 A.2d 383 (1943), while the Supreme Court of Fennsylvania, in In re Estate of Laning, 462 Pa. 157, 160, 339 A.2d 520, 521 (1975), enforced a testamentary condition that required that the testator’s grandchildren be “members in good standing of the Presbyterian church.”
The concurring opinion mentions the reference to the Restatement (Third) of Trusts in the majority opinion and then cites Peck v. Froehlich, 367 Ill. App. 3d 225 (2006), which has absolutely nothing to do with the case at bar.
Of particular interest is that the author of the concurring opinion has not mentioned other subject matter annotations that are precisely contrary to his citation. For example, in American Law Reports (89 A.L.R.3d 984 (1979)), a section entitled Wills: Condition That Devisee or Legatee Shall Renounce, Embrace, or Adhere to Specified Religious Faith, goes so far as to outline the material that testamentary draftsmen may safely advise their clients with respect to such provisions. Specifically, section 2b provides: “Modern authority upholds testamentary conditions that a donee embrace or renounce a particular faith, so that in most jurisdictions testamentary draftsmen may safely advise their clients that within limits, such a provision may be included in a will.” J. Ludington, 89 A.L.R.3d §2b, at 986 (1979). Similarly, in Illinois Practice (19 R. Hunter, Illinois Practice §188:11, at 176 (5th ed. 2008)), dealing with conditions and restrictions relating to religion, it is stated:
“It is generally held that provisions in a will requiring a beneficiary to renounce, embrace or adhere to a particular religious faith are valid as against the contention that they are contrary to public policy generally or to the specific policy embraced in constitutional guarantees of religious freedom. Similarly, testamentary conditions restricting the beneficiary’s marriage to a person of a specified faith or requiring the marriage to be performed according to a particular religious form, or that children of the marriage be educated in such faith or form, are generally upheld.”
The concurring opinion reaches out to Shelley v. Kraemer, where the United States Supreme Court held that restrictive covenants prohibiting real property from being used or occupied by any persons except those of the Caucasian race were invalid. In Shelley the covenants were placed upon the real estate by grantors that had no relationship whatsoever with subsequent grantees or grantors. The covenants could affect the transfer of real property from grantors to grantees, neither of which had any relationship with the original creator of the restriction, and would continue for decades, generations and perhaps forever. In the case at bar, we have a man and woman placing restrictions on a gift to their grandchildren and those gifts do not touch upon strangers in the distant future.
Moreover, in Shelley, the court understood its limitations and provided that its holding would only provide authority for enforcement by state courts allowing them to refuse to enforce restrictive covenants that violate the equal protection clause of the fourteenth amendment, stating: “That Amendment [fourteenth] erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley, 334 U.S. at 13, 92 L. Ed. at 1180, 68 S. Ct. at 842.
The concurring opinion further suggests there are difficulties which face courts in attempting to enforce certain partial restraints. Indeed there are. For example, in matters where there is a question as to whether the beneficiary has “been brought up and educated in the Roman Catholic religion or whether he attended Catholic Sunday school and attended mass at various Roman Catholic churches with ‘reasonable regularity’ for years,” the court would be required to inquire as to whether the legatee heir performed various religious rites. However, that is not the case here where there is no suggestion that the spouses of the grandchildren are Jewish. In Shapira v. Union National Bank, 39 Ohio Misc. 28, 315 N.E.2d 825 (1974), the Ohio court upheld the provision requiring the son to marry a Jewish girl within seven years of his death and in the event he was unmarried within the seven years to a Jewish girl or married to a non-Jewish girl, the son’s share of the estate was to go to the State of Israel.
The Shapira court concluded:
“[it] demonstrates the depth of the testator’s conviction. His purpose was not merely a negative one designed to punish his son for not carrying out his wishes. His unmistakable testamentary plan was that his possessions be used to encourage the preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through the State of Israel. Whether this judgment was wise is not for this court to determine. But it is the duty of the court to honor the testator’s intention within the limitations of law and of public policy. The prerogative granted to a testator by the law of this state to dispose of his estate according to his conscience is entitled to as much judicial protection and enforcement as the prerogative of a beneficiary to receive an inheritance.” Shapira, 39 Ohio Misc. at 38-39, 315 N.E.2d at 832.
Accordingly, the great weight of authority as to cases which have considered this subject have held such provisions as it appears in the case at bar to be reasonable and not contrary to the state’s public policy. The majority places us in the minority of jurisdictions that have considered this issue.
Max and Erla had a dream with respect to the provisions of their will and if you will it, it is no dream.