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'Jewish clause' divides a family

State courts weigh in on a man's will that disinherited any descendant who married a gentile

All parties to the lawsuits swirling around the estate of Max Feinberg agree he was a Chicago dentist who made a lot of money and was proud of his religious heritage.

The lawyers and judges also agree a provision of his estate planning poses a fascinating legal issue: Can a monetary prize be used to bind a family to its ancestral faith?

After that, the bickering begins.

Two of Feinberg's five grandchildren accused his daughter, who was administering his estate, of tapping prematurely into the funds Feinberg left to his wife, Erla.

Then the case ran into what has been dubbed "the Jewish clause." In his will, Feinberg expressed his wish to disinherit any descendant "who married outside the Jewish faith." The grandchildren behind the accusations had married gentiles, so under the clause it could be argued they are not heirs and have no standing to bring suit.

Feinberg's son, Michael, whose daughter has accused him of misusing family funds, said he feels obligated to carry out his father's wishes as expressed in the will. His lawyer, Michael Durkin, said, "The case comes down to individual rights versus political correctness."

For James Carey, attorney for Michele Trull, Michael Feinberg's daughter, the dispute turns not on philosophy but on greed. "At heart, this is a case involving very base motivations," Carey said.

An Illinois Appellate Court has weighed in on the case, giving judges a chance to consider a question as old as the law itself: When an individual's rights are on a collision course with those of society, which has to give way?

Can't a person do what he wants with his money—like ensuring the survival of the Jewish people? Judge Alan Greiman thought so, writing: "Max and Erla had a dream with respect to the provisions of their will and if you will it, it is no dream."

But Judge Patrick Quinn feared that allowing the Jewish clause to stand could form a legal slippery slope. Suppose Max Feinberg had reservations about his descendants' marrying a black person. The judge asked: Do we really want courts "to enforce the worst bigotry imaginable?"

'Deceased,' then 'resurrected'?

Quinn also noted that beyond smacking of religious prejudice, the Jewish clause posed a Solomonic technical problem. Using boilerplate legal language, Max Feinberg's will defined offspring who married non-Jews as "deceased." But what if one divorced and remarried within the faith?

"The question arises as to whether the grandchild would be 'resurrected' upon marrying the Jewish spouse," Quinn wrote.

In the end, the court ruled 2-1 that it would be "contrary to public policy" to honor Max Feinberg's wish. Greiman was the dissenter. Now Michael Feinberg, who is appealing the decision, is waiting to hear whether the Illinois Supreme Court will take the case.

Some of Max Feinberg's offspring are not talking publicly about the legal battle. But the charges and countercharges of their legal papers speak volumes.Among other developments, Max Feinberg's daughter asked a judge to proclaim her children and their cousins legally "deceased" for purposes of doling out trust funds. His granddaughter Trull accused her father of looting his mother's bank account for unauthorized purposes—such as paying for Trull's wedding. Another grandchild told a court that Max Feinberg's widow had attended his wedding but did not warn him that marrying a gentile could cost him his inheritance.

According to Michael Feinberg, this tangled affair began when his father discovered that a grandson was taking a gentile to the junior prom at Niles West High School in Skokie.

"My father let my son, Aron, know he wasn't happy with the idea of diluting the family's Jewishness," Michael Feinberg said.

Max Feinberg then expressed his religious loyalty in his will. After he died in 1986, his money went into a trust for his wife, who would outlive him by 17 years. Their son and daughter, Leila Taylor, were the executors of Max Feinberg's estate and managed his widow's financial affairs. Of the couple's five grandchildren, four married gentiles.

After Erla Feinberg's death in 2003, the lawsuits began to fly, as various family members accused one another of mismanaging her funds. Michael Feinberg's children accused Taylor, their aunt, and her husband of taking $1.6 million "not for Erla's benefit, but solely for their own."

The Taylors fired back by asking the court to invoke the Jewish clause, which would disinherit both grandchildren for not marrying Jews. By doing so, Taylor in essence was disinheriting two of her children because they, too, had married out of the faith.

As a mother, wasn't that a tough thing to do? "If I win, the money reverts to me," Taylor said. "I can do anything I want with it, including giving it to my children."

Once the courthouse door was open, the legal papers really began to fly. Trull sued her father, accusing him of using Erla Feinberg's money to finish the floors in his house and buy a car and a summer home. In a deposition, Michael Feinberg said the money was "an advance on my inheritance."

Aron Feinberg dropped out of the legal struggles after his sister sued their father. "Aron didn't want to be part of the fray," said his attorney, Charles Kogut.

Trull has been winning in court. The Appellate Court threw out the Jewish clause, and the trial judge put her opponents on the defensive, shifting the burden of proof to them. Judge Susan Coleman ruled it is up to Michael Feinberg and Taylor to prove their handling of their mother's money "was not the product of fraud or undue influence."

Michael Feinberg said he has spent $200,000 in legal fees and thousands more in asking for a review by the Supreme Court.

"There is nothing for me to win," he said. "I can only lose."

Upholding father's wishes

So why press the matter? By way of reply, Michael Feinberg recalled that his father, a child of immigrants, was a traditionalist in his work ethic as well as his feelings about intermarriage. Max Feinberg came to his dental office wearing a suit and tie for years, seven days a week. He was a shrewd investor whose broker called him to find out what the market was doing.

Michael Feinberg said that while he might not share the ideas his father wrote into his will, he feels obliged to uphold them. It's painful to be sued by your own daughter, he added.

His wife, Marcy, said Trull's actions are something like the old adage about cutting off your nose to spite your face. She might win in court, but she is exiled from the family dinner table.

"I have to think she misses the gefilte fish," Marcy Feinberg said.

Tears came to her husband's eyes. He tried various ways of explaining why he keeps the battle going. Finally, he put his feelings in the form of a question:

"Where do you stop?"

rgrossman@tribune.com

Related topic galleries: Ethics, Local Authority, Lawyers, People, Values, Court Administration, Judges

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