315 N.E.2d 825 (Ohio Ct. Com. Pl. 1974)
David Shapira, M. D., died April 13, 1973, a resident of this county.1 This is an action for a declaratory judgment and the construction of the will of David Shapira, M. D.2 By agreement of the parties, the case has been submitted upon the pleadings and the exhibit.3
The portions of the will in controversy provide that the residue goes to the testator's three beloved children, Buth Shapira Aharoni, Daniel Jacob Shapira, and Mark Benjamin Simon Shapira in equal shares with qualifications.4 The will states that Daniel Jacob Shapira should receive his share of the bequest only if he is married at the time of the testator's death to a Jewish girl whose both parents were Jewish.5 In the event that at the time of the testator's death he is not married to a Jewish girl whose both parents were Jewish, then his share should be kept by the executor for a period of not longer than seven years.6 If Daniel Jacob gets married within the seven year period to a Jewish girl whose both parents were Jewish, the executor is instructed to turn over his share to him.7 In the event that Daniel Jacob is unmarried within the seven years after the testator's death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish girl, then his share should go to the State of Israel, absolutely.8
The provision for the testator's other son Mark is conditioned substantially similarly.9 Daniel Jacob Shapira, the plaintiff, is twenty-one years of age, unmarried and a student at Youngstown State University.10 The plaintiff alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and unenforceable because of its unreasonableness, and that he should be given his bequest free of the restriction.11
Whether the condition in the will restricting inheritance unless the beneficiary marries a Jewish girl whose both parents were Jewish violates the Fourteenth Amendment to the United States Constitution?12
The Fourteenth Amendment protects the right to marry from restrictive state legislative action, as recognized in Meyer v. Nebraska, Skinner v. Oklahoma, and Loving v. Virginia.13 However, 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.14 A testator may legally entirely disinherit his children.15
No. The condition in the will of David Shapira does not violate the Fourteenth Amendment.16 The plaintiff contends that the condition violates constitutional safeguards based upon the premise that the right to marry is protected by the Fourteenth Amendment from restrictive state legislative action.17 This court is not being asked to enforce any restriction upon Daniel Jacob Shapira's constitutional right to marry.18 Rather, this court is being asked to enforce the testator's restriction upon his son's inheritance.19
The facts establish that Daniel Jacob Shapira is twenty-one years of age, unmarried and a student at Youngstown State University.20 The will conditions his share on marriage at the time of the testator's death to a Jewish girl whose both parents were Jewish.21 The share is held for up to seven years with a gift over to the State of Israel if the condition is not satisfied.22 Upholding and enforcement of the provisions of Dr. Shapira's will conditioning the bequests to his sons upon their marrying Jewish girls does not offend the Constitution of Ohio or of the United States.23
The condition does not violate the Fourteenth Amendment to the United States Constitution.24
Whether enforcement of the will condition by a state court constitutes prohibited state action under the Fourteenth Amendment?25
Under Shelley v. Kraemer, the action of state courts enforcing private restrictive covenants can constitute state action prohibited by the Fourteenth Amendment.26 However, the doctrine does not extend to judicial enforcement of a testator's restriction upon a son's inheritance rather than an injunction against marriage itself.27 Cases such as Evans v. Newton and Pennsylvania v. Board of Directors involved state agencies enforcing racial restrictions after assuming control of public facilities, not the judicial completion of testamentary gifts.28
No. Enforcement of the will condition by this court does not constitute prohibited state action under the Fourteenth Amendment.29 In Shelley v. Kraemer the Supreme Court held that judicial enforcement of private agreements restricting property use could amount to state action.30 The doctrine is not applicable here because the court is not being asked to enjoin Daniel from marrying a non-Jewish girl.31 The facts show that the will creates an executory devise under which vesting occurs conditionally within seven years after the testator's death.32 The share goes to the State of Israel upon breach.33
The plaintiff submits that a judgment upholding the condition would constitute state action prohibited by the Fourteenth Amendment as much as a state statute.34 Yet neither Evans v. Newton nor Pennsylvania v. Board extended Shelley to testamentary conditions on inheritance.35 Both cases involved subsequent enforcement of racial restrictions by public management of parks or colleges founded by will.36 The court concludes that the upholding and enforcement of the provisions does not offend the Constitution.37
Enforcement of the will condition by a state court does not constitute prohibited state action under the Fourteenth Amendment.38
Whether the condition is void as contrary to the public policy of Ohio?39
A partial restraint of marriage which imposes only reasonable restrictions is valid and not contrary to public policy.40 Gifts conditioned upon the beneficiary's marrying within a particular religious class or faith are reasonable.41 A testator may not attach a condition to a gift which is in violation of public policy.42 The public policy of Ohio favoring freedom of religion does not invalidate a testamentary condition that operates only on the choice of a spouse rather than directly restraining religious practice.43
No. The condition is not void as contrary to the public policy of Ohio.4445 The condition that Daniel's share should be turned over to him if he should marry a Jewish girl whose both parents were Jewish constitutes a partial restraint upon marriage.46 The great weight of authority in the United States is that gifts conditioned upon the beneficiary's marrying within a particular religious class or faith are reasonable.47 The facts show that the will contains a gift over to the State of Israel upon breach or failure of the condition.48 This distinguishes the case from bare forfeitures and demonstrates the depth of the testator's conviction.49
Plaintiff contends that the condition is void as against the public policy of Ohio as shown in Hackett v. Hackett and Moses v. Zook.50 However, the controversial condition is a partial restraint upon marriage and not a covenant to restrain the freedom of religious practice.51 Moses v. Zook differs in its facts in not containing a gift over upon breach of the condition.52 It appears not to have been a sufficiently litigated or reasoned establishment of the public policy of Ohio which this court should be obliged to follow.53 It is the conclusion of this court that public policy should not and does not preclude the fulfillment of Dr. Shapira's purpose.54
The condition is not void as contrary to the public policy of Ohio.
Whether the condition constitutes an unreasonable restraint upon marriage?55
A partial restraint of marriage which imposes only reasonable restrictions is valid and not contrary to public policy. The test of reasonableness considers whether the beneficiary has a reasonable latitude of choice.56 This takes into account modern conditions of travel and communication rather than the limited local pool of eligible partners that rendered the condition unreasonable in Maddox v. Maddox.57 A seven-year grace period provides ample opportunity for reflection and fulfillment without constraint or oppression.58
No. The condition does not constitute an unreasonable restraint upon marriage.5960 The condition that Daniel's share should be turned over to him if he should marry a Jewish girl whose both parents were Jewish within seven years imposes only reasonable restrictions.61 There are no census figures in evidence.62 The court is by no means justified in judicial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in this area from which Daniel would have a reasonable latitude of choice.63 Daniel is not at all confined in his choice to residents of this county.64
The seven-year time limit would be a most reasonable grace period.65 It would give the son ample opportunity for exhaustive reflection and fulfillment of the condition without constraint or oppression.66 The possibility that the beneficiary might marry a qualified girl just to receive the bequest and then divorce her afterward seems too remote to be a pertinent application of the policy against bequests conditioned upon divorce.67 In the opinion of this court the conditions contained in the will are reasonable restrictions upon marriage and valid.68
The condition does not constitute an unreasonable restraint upon marriage.