this appeal presents the question of whether a cause that provides a disincentive to a particular range of potential marriages should be given if given a fact in accordance with the illinois longstanding principle of enforcing a testator's plainly stated intent michael brings his appeal in accordance with his duties as an executor in order to give full effect to his father's explicitly stated intentions and his clear and long standing wish to foster and encourage his faith within his family in his grandchildren and hopefully in their children as well during his life max feinberg expressed a deep concern with the decline of judaism in america due to interfaith marriage he sought to prevent this decline within his own family by providing an incentive to his grandchildren to remain and marry within the faith in this way he sought to keep not only his grandchildren within the faith but to encourage them to raise their own children in the tradition of his forefathers the mechanism x employed was a testamentary provision that i called religious preference clause the clause stated that any of max's descendants other than his children who marry quote outside the jewish faith would be quote deemed deceased for the purposes of max's testamentary trust if you side notes i call it the religious preference clause rather than what the lower courts and the parties in the lower courts called it the jewish clause because the use of such clauses is not in any way unique to judaism clauses of this type of been used by a number of religiously motivated testator's of various  the most common face involved do appear to be judaism and roman catholicism but i have seen one employed in case law by a greek orthodox testate are and there's no reason to believe that they are not in use by any number of testator's of other faiths today second the provisions used of the term deemed to deceased should not be introverted as an indication that maxim self somehow considered a grandchild who had married outside the faith to be literally or figuratively dead to him the public policy but specifically with respect to the restatement comment one to that section gives a specific example as a provision that terminates all of a beneficiaries rights to a trust if he marries a person who was not of a specified religion is that exactly what happened here well the example given in the restatement is not what happened here the example in the restatement uses a funded trust to cowor future behavior or to influence future behavior it says you will have this trust but if you ever marry outside the faith you lose the trust i don't concede and michael doesn't concede that the principle laid out in the restatement should apply here if it did apply here however it wouldn't apply to the facts of this case because in this case although max is trust created what we call condition subsequent that is it created that the descendants could lose if they married outside the fake max's trust also gave his widow a power of appointment that she could exercise during her lifetime well it did in fact exercise that power of appointment what she did was she made bequest to all of the children and grandchildren who were not quote deemed to deceased and made those bequest effective on her death and those bequest were that amount sufficient to drain the trust completely lost in the event of some future action it's now a status as of the date of early his death any descendant who was deemed deceased as of the date of orlistat was  condition precedent is completely different from what set forth and we're not resolving the specifics of this case sure there were five children is it five grandchildren there are five grandchildren at the time of max's death four of them were married all of them were male at the time of max's death row none of them were married at the time earliest death all of them were married all right one but only one of the five was married to a jewish house that's correct so the four other children were ultimately while they had another option the option would have been if they could convert within a year that's right any of the spouses in another spouses converted within a year that's correct none of these though all of those those four grandchildren were all treated seized in the distribution of trust is it for the purposes of max's trust that's correct is there an inference from that that marriage played some part in the reason that they were that they were considered  considered deceased because that's the plain language of the truss i don't say that marriage played a part i suppose that's correct well they said if they if they had they could have chosen the option of divorcee two as well there is no it doesn't seem to be mentioned but that is they could have done that and by doing that they would have qualified for the truck but there's nothing in the trust that would say that one who remarries or divorces would somehow become eligible again but that person would be deceased by the words of the trust word or the word to the estate well i believe they would because they had married outside the faith and the and the term of the trust says anyone who marries outside the jurors i guess that brings us to justice thomas public policy to suit consideration and is a year is it your position that that public policy analysis favors your position in this case i don't believe that there is a public policy in favor of striking all testamentary provisions that tend to discourage or provide a disincentive for particular range of marriages so no i don't think that public policy exists in the restatement of the restatement provision again leaving aside the question of whether the only applies to conditions precedent rather than subsequent the restatement provision acknowledges in the reporter's notes that it is a reversal of the common law and let me step back and say that in order to avoid a testamentary provision the lower courts needed to find that there was a clear violation of the settled public policy where public policy is found in the illinois federal constitution it's in the statutes of the state of illinois and in the common want decision of the courts of illinois finding that public policy in a restatement provision that the authors acknowledge is unsupported by the existing common law isn't a settled public policy that would justify overriding and second it's the highest courts of four of illinois sister states had explicitly considered these provisions and found them in forcible it's oregon pennsylvania provisions that act as a restraint of marriage or which encourage divorce or word against public policy or you say you don't fit into that general rule because of your status or i do take exception to that general rule for actually prevent one of their beneficiaries from marrying or not marrying anyone of their choice but the other reason i take exception is because there doesn't seem to be any kind of general rule against so called partial restraints on marriage the common want decisions both in illinois and outside of illinois recognize that there are a variety of quote unquote partial restraints that are in forcible a provision that provided a disincentive to marriage to a particular individual provision that provided a disincentive to marriage before or after within a certain age range a provision that required consent to a particular marriage all of those have been enforced at the common law and decisions of the intermediary appellate courts in illinois have indicated that those types of provisions are enforceable as well so i think it would be a mistake to say that there is a general rule that get the inheritance unless either divorced his wife or his wife well and that's why i suspect the same thing could be said about that that you know it wasn't a restraint on marriage or promoting divorce it was a clause that involved monies going to their child but nonetheless the supreme court held that clause in i think michael would concede that a clause that tended to encourage a divorce would not be enforced or should not be enforced and that's the real distinguishing principle between winterland trip vs pain in re state of gurgling and ransom vs boston all these cases were relied upon by the lower courts and by the applebee's but all of them considered a provision that through conditions subsequent again would have encouraged divorce and we can see that those cases state are a valid public policy and forcible public policy that's why isn't any court in illinois ever adopted restatement for us i am unaware of any court adopting it in toto there have been to publish decisions that adopt particular provisions of the restatement third neither of those cases in adopted a provision that state's controversial statement of law certainly neither of them neither of the adopted provisions one hundred eighty reversal one hundred eighty degree reversal of  common law the way this particular restatement provision does their print i would i forget exactly what they are but one was for merely a procedural matter and one was a matter of some minor substance but but that had been clearly established by the common law and the reporter's notes in those provisions are full of the prevailing common law authority to support those propositions in opposition to the clause and or the restatement provision here here the restatement provision directly contradicts the current so statement of property and going to transfers that restatement specifically states that these clauses are and in the restatement third of trusts in the reporter's notes the reporters acknowledge that the new quote unquote new rule in the third restatement contradicts the the provision of the restatement second on property and says it is probably true that this is a close paraphrase it is probably true that that rule stated in the restatement second of property don't do transfers is generally supported by the american cases in point if the reporters themselves are acknowledging that the direct opposite rule is generally supported by the american cases in point how else are we to view that restatement provision as anything other than a prescriptive and normative personal view of how they believe the law ought to be and in that sense it really fails the mission of restatement the american law institute publishes their statements of the law and it publishes model holds and it distinguishes between these by saying that the model code is a statement of what they believe the law should be and it's put out there so that courts and legislatures can consider whether the law should move in a certain direction the restatement according to the american lawyer to two is intended to be a statement the law as it is is supposed to be black letter law but that's not what happened in this particular restatement provision by the author's own acknowledgement it simply isn't black letter law and again i won't go through the list again but any number of common law decisions have in force these clauses in fact religious preference clause and it only did so in that case because the clause was so restrictive that it amounted to a general restraint on marriage and again michael concedes that a general restraint on marriage would not be enforced and should not be enforced applause mr snaring i'd like for you to help me understand one of your earlier comments about a condition subsequent condition preceded it if we start from the proposition that any tested or max year could've be cited to disinherit any of his grandchildren who are or are already been married and had married outside the jewish faith i take it no one would argue that there's anything wrong with you back you would have put anything into the will says that what your second if i understand you correctly you're saying by creating the trust and giving early the power point went over the trust when she exercised that that was the situation the children or grandchildren were married she knew and that was therefore a condition preceding well i'm not making a claim about her was knowledge but i am saying that yes he was a condition preceding overlook could have absolutely excluded any of the grandchildren or none of them or some of them by name for any reason or no reason there's no right to inherit and what she didn't do wasn't bound by the condition what she intended was to exclude beneficiaries as if that clause were enforceable when she exercised the power of appointment she had every reason to believe that that clause was going to be enforced and she wished she could do by name by specifically excluding michelle by name she could do by naming a class that's another fundamental principle here what she did and that's what she did she named a class that michelle was a part of that class and beneficiaries who were not deemed deceased and so and so it really doesn't matter whether it was or wasn't in forcible she intended to exclude michele because as far we have no reason to believe that she could have thought anything other than it was going to be enforced every authority at the time she exercised this power of appointment so that it was going to be in the or in forced so no i would i would disagree that she is limited in any way by the terms of masses drugs and what she did by condition precedent is one hundred percent enforceable under both the restatement provisions cited by the lower courts and by the way and by the dicta in branston that are cited by the lower courts and the applebee both of those authorities the receive an explicitly says it that the scope of that for restating provision is limited to clauses that would influence future conduct and once all had exercised her power of appointment and she and on the date of her death it was a status effect there's no effect on future conduct there and really still talked about that clauses that were calculated to prevent or to encourage prevent a lawful marriage or encourage a divorce and so that language is clearly directed to the future as well so again nothing in either of those two sources of this of the suppose of public policy identified by the lower courts would actually act to prevent enforcement of earlobes power of appointment in this case i see my time is nearly up unless the court has any further may please the court honorable justices i'd like to first start by commenting on this issue of earl is power of appointment because really in many ways that is not before this court the trial court did not make any findings as to earl  intent you know earlier was was was arguably yes your honor i don't i'm not sure i don't think you started your name oh sorry chris lang gone for the aptly michel feinberg trial but the trial court did not make any findings about earl  intent and that is what one of the the issues in this case is that the executors are alleged to have taken millions of dollars out of earle as a state when she was alive and in a nursing home and basically lacking  capacity attended the wedding which by the way was officiated by a rabbi and was a religious wedding so if you want to look at the plain language of the clause quite literally the marriage occurred within the jewish faith it was a jewish wedding earlier was present the reason that they're trying this argument now is because they do recognize the concern of this dead hand control that goes on and on and on max died in one nine hundred eighty three early died in two thousand and three at any time between one thousand nine hundred three and two thousand and three if michelle married somebody outside of the jewish faith she would be deemed deceased so max's condition subsequent a fax michel's marriage conduct in eighty three and eighty four and eighty five and all the way up in that twenty year period when the finally dies now earliest did she know that or does it make any difference we contend that it does not make any difference but as a matter of fact no she did not know that she was told by her father that so long as you are married in a jewish wedding you are ok and brings up another question you talk about the part of this recovery well i mean if this court were to reverse and get through all of the hurdles that they have to get through regarding the vagueness of the clause and whether it violates public policy and whether it's impermissible to hand and i don't think the court should because i'm just pointing out that that this point about what really new in all these fact questions are not before the court where it was power of appointment was limited were with couldn't just applying to anybody vs paying stated that if the constitution and statutes of this state have declared our public policy on this question or of the question has been passed upon by our courts we must look to such an occurrence and decisions and not to those of other jurisdictions and this court in rand's del stated it is of the first importance to society that contract and testamentary gifts which are calculated to prevent lawful marriage were bring th your own that restatement there is is an advocacy of legal reform not a not a compilation of existing law but now i believe that the restatement is a compilation of existing law i believe that the restatement correctly restated existing law the difference between the restatement third and the restate and second is about fifty years the restatement second came out in the fifty's this was before we had the civil rights act of one thousand nine hundred sixty seven this is before we had hate crime laws this is before we had statutory enactments that say that the public policy is not to discriminate maybe it was ok in the eighteen hundreds to say that if my daughter marries a black person or she marries a catholic or she marries outside of the jewish faith two ninety seven when you look at the common law in the common law goes back to the middle ages and it says don't marry a catholic that is not and should not be respect for the public policy of the state of illinois in two right but for the next twenty years or the lives she has this cloud hanging over her quite frankly had they known about the clause earlier was quite advanced to the age of that time she died or literally two years after the wedding they could have said well you know earl is looking sickly maybe we should postpone our wedding and so she dies we don't want to lose our inheritance is not what the public policy should be but you know the timing was off had they married three years later they were taken had the shell remained on married and this is such a crucial fact when you realize that conditions need to be for the benefit of the don't e she would take your honor just as i asked a question specifically about does it use a first of all that bit does it use a fund to trust and they said it does which is just not accurate  any of the children marry outside of the faith they're deemed deceased in other words it does go on for an indefinite period of time so it does have that kind of long arm control that kind of of dead hand control over over a fundamental the right to marry which this court held in people that you the court the public policy of the state is to promote marriage not to discourage marriage and when it came up that michelle had another option there was another option i think was languages close to convert she also had a photo option to remain on married because because the argument here is that if you marry outside of the faith you deem to abandon the faith but remaining unmarried would have been a way that michelle could have taken under the will if she had not married ethan she would be enjoying her legacy right now so the fact is when you part really when you say to somebody if you remain unmarried that discourages marriage and violates the public policy  requests but when you try to impose a condition that goes on and on and on after your death then the condition will not be influenced unless it's for the benefit of the dani i'll give you my estate if you quit smoking that's for the benefit of the me it's in forcible on marriage you know so long as you don't marry before the age of twenty one it's for the benefit of the don't need not to marry too young it's a minor restraint it's not any kind of permanent restraint it doesn't implicate religious rights or civil rights it's an forcible so the concern here is not whether max or what have the right to do with their money if what they say about those intent is true but she should have simply written the show out of the  will using the power of appointment and anybody that wants to disinherit or disown their children for religious reasons racist reasons working or other reasons is free to do so so long as they're used outright quests but once you get into that world of conditional bequests with dead hand control and if you look at the six decisions in illinois whether these clauses are upheld or not they turn on whether or not there's that dead hand control the only two cases where this court upheld any kind of restraint on marriage and hall the court both specifically noted it's because at the time of the death the rights were fixed if the question was max's dead let's see who's married outside of the faith you freeze it in time that's fine but and that's why and haul vs girding conditions that said my daughter will take so long as she is divorced at the time of my death we're fine because you look at the time of the death it's a snapshot she's divorced she takes tested unlike the husband didn't want the husband to squander the estate fine because there's no dead hand control and in this case it is a condition subsequent and that's why they're so desperate to do these legal gymnastics to get around it but of the proof would be a difficult question or one that courts are not suited to but the plain language says that you do deceased as of the date of marriage so i don't know if a divorce would reza rack to once you've been deemed deceased and justice quinn said that would be a question by just carmen on this public policy issue if it turns on whether or not a clause encourages or discourages marriage is that operate in a legal stratosphere or does it operate in the lives of these people because because the case or talks about the capacity to influence it doesn't go from for this course of determination if the court it doesn't matter if the recipient moved because the court can't enforce the clause it's void against public policy that's the problem with conditional bequests with conditional bequests you're dead you're asking the court to on an ongoing basis you know enforce your riches and when your wishes are religious in nature and when you want to court to put the could she has given the power not a general power claiming a specific power of appointment she could give money to the people that met the definition of descendants but if you marry outside the faith you are already excluded from that body by max's condition subsequent so the people that are looking for two are limited she could not for instance give the money to the state of israel because the state of israel is not one of the deceiving maxes deceiving so she was given a limited not a general power of appointment so does that does that answer well in his heart i guess that this whole question about i'm not sure if it's been fully briefed or whether or not we have the complete trust document in the record well i meant that study and i'm reading now yes we do on page the complete trust document is on the all purposes the instrument from that includes the power of appointment you don't include defining descendants you know in one clause an instrument and use it in a different term in another place in the instrument so just like a collar so too will is part of the instrument of the will overall the fact that  personally as opposed to the jewish people generally but cites no authority for this narcissistic public policy right the purpose was not to benefit michele but now it's the purpose was to benefit the jewish people generally and that's not  easy for max to say i don't think you're jewish and more i disown you but once you get into a contest or the state battle and a court has to say you should marry a jew not a jew that becomes unconstitutional to terminations but one of the cases that judge quinn side of them is concurrence was the court found that somebody who wasn't a catholic because they they didn't take their first communion because they were in the hospital and they were very very ill even though they were baptized and even though they went to catholic school and even though they attended mass regularly and the courts took testimony from priests to determine who was a cap back to the days of ecclesiastical courts are gone courts cannot determine religious questions in fact they go so far right in calling it a religious preference clause and say that they should get  thumb on the scale because they're the minority religion and if this court doesn't go out of the way to preference for jewish religion that that usurped but the u s supreme court in reality case has made it very very clear that nobody virgin gets preference majority minority doesn't the most important thing i think you need to say is that this case is not the case of don't marry a catholic or don't marry outside of my racial group back question is not presented by this case and there are  of public policy considerations that are at play in this case that would be at play in those other cases this case is about whether they were a beneficial intent and intent to foster religion within one's own family and to foster one's religion generally and to enforce one's own religious community whether that clause is enforceable and the suggestion that this would lead to some boogie man case where we have to enforce terrible bigotry i think that's a ridiculous suggestion you heard counsel say again and again and again that deadhead control is the issue but what you didn't hear counsel say what you won't hear counsel acknowledge is that there is no further control on future conduct as of the date of our list that the question was raised when does the will speak it speaks on early step prior to earl all of the beneficiaries were merely contention she could have directed all of the money to any one of her descendants for any reason whatsoever the question of who is a descendant to and you heard coun required to to make that power exercise that power in favor of one of max's descendants but max's trust doesn't define descendants as descendants who are not deemed deceased the religious preference clause only defines the termed deem deceased not descent but again sure she could have done it really doesn't matter if she was limited or not i stopped for just a moment sure so she could she would have looked at the will to decide whether or not it was an appropriate decision well it's hard to take a contrary position to that because she clearly did look at the will she said deem deceased and that term is a term that's defined in the in the trust whether you know what she intended was to exclude anyone who would have been deemed deceased under the will so i can't really say that she didn't need to because in fact she did i don't know what she did i suppose it would be my contention that she didn't need to because i don't believe she was limited by the religious preference clause in exercising her power yes but again that's not crucial to a decision in this case she could have x exercise the power of appointment in favor of any dissent and she chose to limit the class to descendants who were not deemed deceased and the question of benefit to the dhoni also came up i think that's an important point it's not our contention or not our entire contention that the benefit must be to the jewish people generally rather than to michele it's certainly true that max thought that the jewish state benefits to his children and if you look at the rest of case it says the conditions limitations they believe the testator's believes is in the best interest of his don't ease if you look at the whole case the whole case says willing force a condition that encourages divorce because of the reasonable beliefs of the tester but it was for the benefit of the dony so it's a mistake to say that we ought to have an objective standard of benefit the all the case law that talks about benefit to the extent you apply that case law talks about a reasonable belief of a benefit i think it's also a mistake to say that rand still stated a public policy that the third restatement was merely a case in forcing a clause encouraging divorce it doesn't say anything at all about provisions calculated to prevent or to discourage a marriage suggestion that this court would have to determine who is a jew or that any court would have to determine that who is a jew is also i think that straw man argument that's a question of fact and intent any time if there is an ambiguity and i don't fact believe there really is the traditional understanding of who is a jew is someone whose mother was a jew or who has gone through a formal conversion process but if there were a real ambiguity presented as to some hypothetical third party because let's not forget ethan troll has never claimed to be jewish in any way of any branch of any stripe but if this were to be applied to some hypothetical third party that we would the constitutional question really isn't presented by this case because this court doesn't need to find a constitutional violation in order to in order to find that there's no clear public policy that supported voiding the clause however the real difference between this case and the cases raised by apple we are that showed vs kramer which was limited by the supreme court to its facts really doesn't apply here that involved what amounted to a discriminatory state action there was a buyer and a seller both willing but a court was in forcing a previous restriction in the d p here the court only needed to neutrally apply common wall principles to give effect to the testator's intent whatever that intense happened to be the mere fact that a neutral application of common law might provide some incidental benefits to one religion or another or a member of one religion or another does not amount to a violation of the establishment clause as appleby's  suggests the suggestion that there was a cloud hanging over michelle at the same time she didn't know about the clause is a bit disingenuous there's no record that michele didn't have knowledge of the clause what there is a record is that max was very clear about his intentions i think michelle's mother and father both provided affidavits to that effect that mission that max was very clear what he intended to do and the reasons he believe that's all i have in this the court has any other questions thank you very much for your time both counsel thank you very much