In Re Estate of Feinberg

891 N.E.2d 549, 383 Ill. App. 3d 992

Opinions

JUSTICE CUNNINGHAM

delivered the opinion of the court:

This is an interlocutory appeal from an order of the circuit court of Cook County striking down the testamentary provision that presents the following question: Can an Illinois court enforce a testamentary provision that any of the testator’s grandchildren who marry outside the Jewish faith, unless the spouse has converted or converts within one year of the marriage to the Jewish faith, will, for purposes of the testamentary instrument, be deemed to be deceased, along with all of his or her descendants? We find that such a provision is unenforceable because it is contrary to public policy. We therefore affirm the judgment of the circuit court of Cook County.

BACKGROUND

The caption of this litigation suggests that it involves several parties and different lawsuits and many issues. The narrow issue before this court is outlined above. Max and Erla Feinberg established trusts to distribute their considerable assets after their deaths. Max died on December 4, 1986, and Erla died on October 1, 2003. Max and Erla were survived by two children, Michael and Leila. They were also survived by five grandchildren, Michele Trull, Aron Feinberg, Lisa Taylor-Schroeder, Jon Taylor, and Aimee Taylor-Severe. At the time of this lawsuit, all of the grandchildren had married, and only Jon was married to a person of the Jewish faith, by birth or conversion. Max’s trust contained the following provision, which the parties refer to as the Jewish clause:

“3.5(e) A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

This appeal involves three cases arising out of the aforementioned trusts. The first case was the probate of Erla’s estate. The second case, chronologically, was a case brought by the granddaughter of Max and Erla, Michele Trull, against the coexecutors of Max and Erla’s estates, Leila Taylor, Michael Feinberg, and Marshall Taylor (Leila’s husband), alleging that those three defendants conspired to evade estate taxes and misappropriated millions of dollars from both Max’s and Erla’s estates. The third case involved Max’s estate and was filed in 2005, when it was discovered that the coexecutors were allegedly holding stock certificates registered to Max, nearly 20 years after his death, which they had failed to transfer to Max’s estate.

Before these cases were consolidated, Leila Taylor, Marshall Taylor and Michael Feinberg, the defendants in Michele’s lawsuit (the second case) sought to have that lawsuit dismissed because it was brought by Michele and under the provision of the Jewish clause in Max’s will, Michele was deemed to be deceased and therefore had no interest in the estate. Michele also filed a motion in the case involving Erla’s estate (the first case), asking that the Jewish clause be invalidated and that the funds from Max’s trust be distributed pursuant to Erla’s power of appointment. Leila Taylor and Marshall Taylor filed a petition in the case involving Max’s estate (the third case), again asserting that pursuant to the Jewish clause Michele is deemed to be deceased. These three cases were then consolidated in the circuit court and the trial judge held that the Jewish clause was invalid because it was against public policy. This appeal followed.

ANALYSIS

In this interlocutory appeal, we address only the purely legal question of the validity of the trust provision at issue and therefore we review the circuit court’s determination de novo. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523, 759 N.E.2d 509, 515 (2001). As early as 1898, our supreme court set forth the general rule that testamentary provisions which act as a restraint upon marriage or which encourage divorce are void as against public policy. Ransdell v. Boston, 172 Ill. 439, 445, 50 N.E. Ill, 114 (1898). However, the court in Ransdell found that this rule was inapplicable to the facts before it because it was clear that the marriage at issue was already in disrepair, with the parties separated, at the time the provision was created. Nonetheless, subsequent Illinois courts have reaffirmed the underlying principle that testamentary provisions are invalid if they discourage marriage or encourage divorce. Thus, in In re Estate of Gerbing, 61 Ill. 2d 503, 507-08, 337 N.E.2d 29, 32-33 (1975), the court invalidated a will provision providing, inter alia, that a trust would terminate and the corpus would go to the testator’s son if the son obtained a divorce. The clause in question stated:

“ ‘In the event my said son’s wife, ARLIE GERBING predeceases my son, FRANK GERBING, JR., or in the event ARLIE GERBING and FRANK GERBING, JR. are divorced and remain divorced for a period of two (2) years, then in either event this trust shall terminate and my trustee is directed to pay, turn over and deliver the remaining principal of the trust property and all accrued dividends or interest accumulated thereon to my said son. In the event my son, FRANK GERBING, JR., predeceases his wife, AR-LIE GERBING, then I direct my trustee to deliver the remaining principal of the trust property together with all accrued or undistributed net income therefrom to my sister, KATHERINE SIEBOLD GRIGG, if she survives my said son. If my said sister predeceases my son, FRANK GERBING, JR., then upon the death of my said son, I direct my trustee to deliver the remaining principal of the trust property and all accrued or undistributed net income therefrom to ROBERT GRIGG, if living, or if ROBERT GRIGG is not living at that time, to his children living at the date of the death of FRANK GERBING, JR., share and share alike.’ ” Gerbing, 61 Ill. 2d at 505, 337 N.E.2d at 31.

In Winterland v. Winterland, 389 Ill. 384, 386-87, 59 N.E.2d 661, 662 (1945), the court invalidated a will provision which, inter alia, left a life estate to the testator’s wife with the remainder to all of his children except that the share of one son, George, would be held in trust for him and the corpus given to him only upon his divorce or the death of his wife. The clause in question in that case stated:

“ ‘I now modify the Third Clause of said Original Will and direct and will that the equal share therein contemplated to be given to my son, George Winterland, if he should survive me, is given, devised and bequeathed to my son Henry Winterland, but in trust nevertheless that he shall keep said share safely invested and pay the income therefrom in cash into the hands of my said son George, so long as he may live or until his present wife shall have died or been separated from him by absolute divorce. If either of those events shall occur during the life of my said son, George, then the principal of said share shall be paid to him, my said son George, as his absolute and unlimited estate. If, however, my said son George shall die prior to my death or having survived me shall die prior to the occurring of either of the two possible events aforesaid, then the principal of his said share shall be divided and is given by me equally between my children then surviving, or if any of such children shall have died leaving children him or her surviving, then such children shall take the share the parent would have taken, if living.’ ” Winterland, 389 Ill. at 385, 59 N.E.2d at 662.

The language and circumstances of the aforementioned clauses, which Illinois courts have found to be against public policy, are strikingly similar to the instant case. We see no reason to depart from this well-established principle.

However, some other states do not follow the uniform precedent of Illinois in validating such provisions. Shapira v. Union National Bank, 39 Ohio Misc. 28, 29-39, 315 N.E.2d 825, 827-32 (1974) (upholding provision requiring decedent’s son to marry, within seven years of testator’s death, a Jewish girl born of two Jewish parents); In re Silverstein’s Will, 155 N.Y.S.2d 598, 599-600 (Sur. Ct. 1956) (upholding requirement of marriage to person of the Jewish faith); Gordon v. Gordon, 332 Mass. 197, 203-08, 124 N.E.2d 228, 231-33 (1955) (upholding provision revoking gifts to beneficiaries who married persons not born in the Jewish faith). Contra Keffalas Estate, 426 Pa. 432, 435, 233 A.2d 248, 250 (1967) (struck down as encouraging divorce and against public policy a provision that testator’s three eldest sons must divorce any wives of a different faith and marry Greek Orthodox women in order to inherit). For an excellent discussion of this area of the law, see J. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill. L. Rev. 1273, 1329 (arguing that no restraints on the personal behavior of a legatee should be enforced). For another general discussion, see E. LeFevre, Annotation, Validity of Provisions of Will or Deed Prohibiting, Penalizing, or Requiring Marriage to One of a Particular Religious Faith, 50 A.L.R.2d 740 (1956).

The Restatement (Third) of Trusts provides that trust provisions which are contrary to public policy are void. It gives as a specific example a provision that all of a beneficiary’s rights to a trust would terminate if he married a person who was not of a specified religion:

“j. Family relationships. A trust or a condition or other provision in the terms of a trust is ordinarily *** invalid if it tends to encourage disruption of a family relationship or to discourage formation or resumption of such a relationship. [Citation.]

In addition, a trust provision is ordinarily invalid if it tends seriously to interfere with or inhibit the exercise of a beneficiary’s freedom to obtain a divorce *** or the exercise of freedom to marry *** by limiting the beneficiary’s selection of a spouse ***. ***

* * *

3. *** The marriage condition terminates all of [settler’s nephew] N’s rights if, before termination of the trust, he ‘should marry a person who is not of R Religion,’ with the same gift over to C College. The condition is an invalid restraint on marriage; the trust and N’s rights will be given effect as if the marriage condition and the gift over to C College had been omitted from the terms of the trust.” Restatement (Third) of Trusts §29, Comment j, Illustration 3, at 62-64 (2003).

We hold that 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. We are not persuaded by the contention that this is a new rule which should only be applied prospectively. As we have noted, similar holdings in which Illinois courts have found similar provisions to be against public policy date back to 1898. Nor are we persuaded by the defendants’ argument that the trust provision was to be applied at the time of Erla’s death and therefore did not affect future behavior. The provision’s clear intent was to influence the marriage decisions of Max’s grandchildren based on a religious criterion and thus to discourage marriage by the grandchildren other than to those of the Jewish faith. This provision violated public policy, as the circuit court correctly held. As there is clearly a nonconstitutional basis on which to resolve this issue, we need not determine whether the provision is also a violation of the state and federal constitutions. People v. Brown, 225 Ill. 2d 188, 200, 866 N.E.2d 1163, 1170 (2007).

We affirm the order of the circuit court of Cook County and remand for further proceedings.

Affirmed and remanded.