Shapira v. Union National Bank

David Shapira, M.D., died on April 13, 1973, a resident of Mahoning County, Ohio. His will divided the residue of his estate equally among his three children: his daughter Ruth Shapira Aharoni, of Tel Aviv, and his two sons, Daniel Jacob and Mark Benjamin Simon.

The daughter's share came free. The sons' did not.

Item VIII provided that Daniel would receive his share “only, if he is married at the time of my death to a Jewish girl whose both parents were Jewish.” If he was not, the executor would hold the share for up to seven years. Marry within the window and the money was released. Fail to, or marry a non-Jewish woman, and the share “should go to The State of Israel, absolutely.” Mark's provision was substantially the same.

Daniel was 21, unmarried, and a student at Youngstown State University. He sued, arguing the condition was unconstitutional, contrary to public policy, and unreasonable. He lost on all three, and the opinion has been in the wills-and-trusts casebook ever since.

Shelley v. Kraemer, and why it did not travel

Daniel's constitutional argument was clean. The right to marry is protected by the Fourteenth Amendment — Meyer v. Nebraska, Skinner v. Oklahoma, Loving v. Virginia. And under Shelley v. Kraemer (1948), a state court enforcing a private racially restrictive covenant is itself state action. Therefore a court enforcing a private restriction on marriage is state action too.

The court's answer turned on what it was actually being asked to do. “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.” Had somebody asked for an injunction against Daniel marrying a non-Jewish woman, Shelley would have applied. Nobody did.

Daniel pressed two later cases — Evans v. Newton, on a park willed to Macon, Georgia for white people only, and Pennsylvania v. Board of Directors of City Trusts, on a college for poor white male orphans. Both failed for the same reason: what the Supreme Court struck down in each was the ongoing public management of the racially restricted institution, not the judicial completion of the gift.

Then the sentence that does most of the work: “the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution.” Ohio, like almost every state, lets a testator disinherit a child entirely. If the greater power exists, so does the lesser one.

Total restraints are void. Partial ones are not.

The public policy argument is where the case earns its place in the casebook, because the rule it applies is genuinely old and still current.

A general restraint on marriage — a gift conditioned on the beneficiary never marrying anyone — is void as against public policy, at least on a first marriage. A partial restraint that imposes only reasonable restrictions is valid. The court collected the authorities: Page on Wills, American Jurisprudence, Ohio Jurisprudence, and Restatement (Second) of Trusts §62(h). Its summary of American law was blunt — gifts conditioned on marrying within a particular religious class or faith are, by the great weight of authority, reasonable.

Daniel's best Ohio case was Moses v. Zook (1934), where a similar clause had been struck down. The court declined to follow it: the public policy point had barely been litigated, no authority was cited, the holding was never appealed, and — critically — that will contained no gift over. Without a gift over, a forfeiture clause is in terrorem: a threat with no consequence, which courts have long refused to enforce.

His best American case was Maddox v. Maddox (Va. 1854), where a niece's remainder was conditioned on remaining a Quaker and there were only five or six unmarried men of the society in her neighborhood. Virginia held that a virtual prohibition on marrying is not a partial restraint at all. The Ohio court agreed with the principle and rejected the analogy, in a passage that dates the opinion precisely: Daniel is not confined to this county, “a very different circumstance in this day of travel by plane and freeway and communication by telephone, from the horse and buggy days of the 1854 Maddox v. Maddox decision.”

• No census evidence. The court declined to take judicial notice that there were too few eligible Jewish women in Mahoning County. Nobody put the numbers in the record.
• Not a religious-practice covenant. Hackett v. Hackett had refused to enforce a divorce-decree promise to raise a child Catholic. A condition on whom you marry, the court held, is a step removed from a condition on what you believe.
• Not a divorce inducement. Counsel argued the son might marry a qualified woman to collect and divorce her afterward. The court called the possibility too remote — and added that a son should not gain an advantage from the assumption of his own impropriety.
• Seven years is generous. Far from oppressive, the court read the grace period as ample time for “exhaustive reflection.”

Why the State of Israel mattered

The court flagged the gift over as “most significant,” and for two reasons.

First, mechanically: it distinguished the case from the bare forfeitures in Moses v. Zook and Maddox v. Maddox, and from the English decisions that voided similar clauses for indefiniteness. A gift over means the clause is not merely a threat.

Second, and the court said this was the greater reason, it showed what the will was for. “His purpose was not merely a negative one designed to punish his son for not carrying out his wishes.” The testamentary plan was that his property be used to encourage the preservation of the Jewish faith — hopefully through his sons, and if not, through the State of Israel.

The conclusion, in the court's own words: public policy “should not, and does not preclude the fulfillment of Dr. Shapira's purpose,” and the conditions are reasonable restrictions upon marriage, and valid.

Thirty-five years later the Illinois Supreme Court reached the same destination in In re Estate of Feinberg (2009), reversing two lower courts to uphold a trust clause that excluded descendants who married outside the Jewish faith. The reasoning was narrower — no grandchild had a vested interest, and the clause operated as a distribution decision rather than an ongoing restraint — but the direction of travel was identical.