Before he died in 1986 at age 77, Feinberg had his attorney insert a clause in his will concerning the distribution of his considerable financial assets. It stated that none of his grandchildren, or their children or grandchildren, would inherit the $250,000 he had allotted to each of them if they married a non-Jewish spouse unless the spouse converted to Judaism.

Max Feinberg couldn't have known that that clause would become the subject of intense scrutiny and the basis of a lawsuit. In it, one of his grandchildren sought to prove that the clause was invalid. An Illinois court agreed. Now the Illinois Appellate Court has confirmed the decision, with one Jewish justice offering an impassioned dissent. There's a possibility the case may go to the Illinois Supreme Court next.

The case - the first of its kind ever to be heard in an Illinois court - has occasioned such intense discussion in the Jewish legal community that the Decalogue Society, Chicago's Jewish bar association, is planning an entire program around it.

It has caused some Jews to worry about whether it may affect the way they distribute their assets after they die.

And it has deepened a rift within the Chicago Jewish family whose fortunes it involves.

The case, formally known as In re Estate of Max Feinberg, pits Michael Feinberg and Leila Taylor, Max Feinberg's children, against their combined total of five grandchildren - two of Feinberg's and three of Taylor's. (Although both Feinberg and Taylor and all five of the grandchildren are named in the lawsuit, not all are active participants in the case, which essentially pits Michael Feinberg against his daughter, Michele Trull. In addition, one of the five, Jon Taylor, is married to a Jewish spouse and therefore would not be subject to the will's stipulation in any case.)

The crux of the Feinberg case is what's referred to by the Appellate Court as "the Jewish clause." With legal language intact, it states: "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 descendents shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage."

While the case involves several other technical issues related to Max and Erla Feinberg's will, the heart of the matter is whether the "Jewish clause" is enforceable. The Circuit Court of Cook County determined that it wasn't. The Appellate Court agreed after reexamining the provision.

The basis of the justices' argument was that the "Jewish clause" violated established Illinois case law invalidating any provision that "acts as a restraint upon marriage or ... encourages divorce," in the words of an 1898 Illinois Supreme Court case that was the first in which the issue came into dispute.

The majority decision cited several other cases in which an Illinois court had invalidated a provision in a will that was based on the heir's marriage. (None of the cases involved Judaism. Rather, it appeared that the parents in the other cases simply didn't like their child's spouse.) The court found such provisions to be "against public policy" and therefore void under current Illinois law.

In the majority opinion written by Justice Joy V. Cunningham, the justices state that "the provision in the case before us is invalid because it seriously interferes with and limits the rights of individuals to marry a person of their own choosing." Illinois courts, they state, "have found similar provisions to be against public policy (dating) back to 1898."

What it means in practical terms is that the Feinberg grandchildren, even the four who have married non-Jewish spouses, will receive their bequests of $250,000 each.

In a separate "specially concurring" opinion, Justice Patrick J. Quinn states his agreement with the main opinion but goes even further into the Feinberg family dynamic, writing that because Michael Feinberg and Leila Taylor would receive their children's inheritance if the "Jewish clause" were ruled to be valid, "Leila and Michael wish to deprive their own children of their inheritance."

If the "Jewish clause" were valid, he writes, "the position it espouses could just as well result in the courts being required to enforce the worst bigotry imaginable" - individuals could stipulate that their heirs would lose their inheritance if they married Jews or blacks, for instance.

Justice Alan Greiman wrote a dissenting opinion. "Max and Erla Feinberg seek to preserve their 4,000-year-old heritage" by inserting the marriage provision in their will, he states. He adds that he finds the Illinois cases the majority cited to be irrelevant to the present case and cites other cases that seem to point to the validity of the clause. "Max and Erla had a dream with respect to the provisions of their will and if you will it, it is no dream," he concludes, echoing Theodor Herzl's famous aphorism.

Greiman expanded on his position in a recent phone conversation. "The majority opinion took three cases where the testator (person writing the will) had been advocating divorce," he said. "That kind of thing, encouraging divorce, is against the public policy of the state, and the majority opinion used those cases as the basis for knocking out the Feinberg case. But the majority of states have approved things like that."

The Feinberg case is the first of its kind in Illinois and there is no case law involving this particular issue, he said. The case "is very different" from the other cases cited in the majority opinion, he said. "It is not encouraging a divorce. It's his money and he could do what he wants to do with it. It's not unreasonable, there should not be public policy against it. Do I think (what Max Feinberg did) is a wonderful thing to do? No. I think it's prejudicial. But when you're giving your money away you can have some prejudices."

As to the "public policy" issue, Greiman said, "Sometimes when judges are activists, they determine public policy. They think the limitation that (the heirs) marry somebody of the Jewish faith is so outrageous. In most states they allow this - not just with Jews but for Catholics and others.

"Illinois is the minority," he said.

Justice Greiman's assessment that Max and Erla Feinberg were seeking to "preserve their 4,000-year-old heritage" was not far off the mark, according to their son, Michael Feinberg. Now 71 years old and recently retired, Feinberg is a dentist like his father and was in practice with him for 25 years. He was present when the clause in the will was drawn up, he said.

Max Feinberg "had a strong commitment to Judaism, to JUF," the Jewish United Fund, he said. "He was raised in an Orthodox home. We were raised in a Conservative family but we upheld all the traditions. Till the day he died, he was a member of his congregation," A.G. Beth Israel in Chicago.

In addition, Michael Feinberg said, his father had a strong commitment to education and was the only one of six siblings to graduate from college. "He tried to instill that in us," Feinberg said. So strong was Max Feinberg's belief, in fact, that he paid for the college educations of all five of his grandchildren through funds he left in his will for the purpose, including medical school for one grandchild and graduate degrees for several others.

"He valued education," Feinberg said. "After all, we are the people of the book. This is what was indoctrinated in him and in us. We would hear stories (from his childhood) of how on Shabbos there were no lights on in the house so he would go to the Boys Club to study."

After Michael Feinberg's sister married and moved to the West Coast, "I was the only one present on a daily basis with father and mother in later years," he said. He was present when the Feinbergs' lawyer drew up the will and "he did discuss that clause with me, asked me how did I feel about it. I said I would go along with it because that's what I was brought up with."

His mother "by and large supported" her husband's feelings on the matter, he said. Erla Feinberg came from a Reform Jewish family whose members had lived in this country for years, but had affiliations to Judaism that were as strong as her husband's. "She made all the holidays, she passed on the recipes for gefilte fish, the blintzes made from scratch. We have all the memories - the meat grinder that attached to the table for making chopped liver from scratch. My wife still makes it," Feinberg said.

When Max Feinberg was inserting the "Jewish clause" in his will, Michael Feinberg's son, Aron, was in high school and dating a non-Jewish girl, he said. Max Feinberg "made him aware of what his feelings on it were," he said. "He was taking this non-Jewish girl to his high school prom. That was the reason for the clause. (Max) wanted to keep the traditions and the feelings of Judaism within the family, keep the family name."

Aron Feinberg, now a Chicago doctor, did marry a non-Jewish woman but their three children are being raised Jewish, Michael Feinberg said. The family belongs to a congregation in Northbrook and Michael Feinberg and his wife, Marcy, "go to the same congregation and observe the (Jewish) holidays with them," he said.

He added that Aron Feinberg "didn't care" about the inheritance from his grandfather. "He's a physician and is able to provide for his family. He married the woman he loved. He didn't care whether his grandfather gave him money or didn't give him money," he said.

One of Aron's sons is named Max, after his grandfather. "It's a good name being carried on," Michael Feinberg said.

It's a different story with his daughter, Michele. "My son goes along with whatever his grandfather stated, but my daughter does not," he said. "Yes, it's caused a rift. I have not talked to my daughter in the last three years. She married a man who has drawn her away from the family. He refers to us as 'those people,'" he said. (Michele Trull could not be reached for comment.)

In his sister's family, he said, the case has not caused dissension because family members are wealthy in their own right. None of those grandchildren appeared in court to support the lawsuit, even though they are named in it.

Michael Feinberg said he was "very hurt" by the court's decision. "I would like to see them at least carry out the terms of a dead man's wishes since he can't appear himself," he said. "I felt it was an arbitrary dispute brought up only by my daughter and her husband. She felt she was being deprived."

He said he believes that some of the justices, who are perhaps 20 years younger than he, "have a different mindset. I'm speaking from the position of a 71-year-old." He still remembers what it was like to be one of just four Jews in a dental school class of nearly 100, he said, and the difficulties that ensued when exams were scheduled on the High Holidays. "You had to be one step above the others just to be equal," he said.

Feinberg's wife, Marcy, said that "we hope the Supreme Court accepts the case. Really everybody in all religions should have the right to do what they want with their own money. All our friends are scared to death of this decision."

Michael Durkin, Michael Feinberg's lawyer, said the case is "very interesting. On the one hand, you have individual freedoms that have been afforded to people from common law concepts of being able to convey their property to family members as they determine. That is offset against public policy concerns that the conditions attached to the bequest may affect marital relations."

"There was no precedent for this in Illinois. This is viewed as the case of first impression on this clause," he said. (The defendants' attorney, James Carey, did not wish to comment on the case for this story.)

Durkin said that he and the parties he represents and the lawyers representing Leila Taylor and her husband are currently reviewing the case to decide whether they will petition the Illinois Supreme Court to review it. He believes there are several reasons why the state's highest court should agree to hear it.

"The appellate court relied on cases that involve trusts that encourage divorce," he said. "Those are distinguishable from the case at hand." In addition, he said he believes the notion that the clause in question violated public policy has not been thoroughly established. "The Greiman (dissenting) opinion highlights some of the issues we believe need to be addressed at that level," he said.

Also, on a technical issue, when Max Feinberg's will was drawn up, the matter fell under a series of laws known as the Second Restatement of Trusts, which, Durkin said, would allow provisions such as the clause in question. A more recent Third Restatement of Trusts, which the court used to invalidate the clause, has not yet been adopted as law, he said.

A petition asking the Supreme Court to review the case must be filed in the next three weeks, he said.

While the Feinberg decision has not yet received much discussion in the Jewish community in general, one group of Jews has been preoccupied with it: lawyers.

"It's been an extremely hot topic in e-mails" among members of the Decalogue Society of Lawyers, Chicago's Jewish bar association, according to Executive Director Devorah Heyman.

In an e-mail sent out to members, the organization's recently installed president, Andrea M. Schleifer, wrote, "This case is important because it involves compelling Jewish interests on both sides: those who believe that each of us ought to have the right to determine the disposition of our own property; and those who believe that such provisions in a will ought to be prohibited as discriminatory, and echo anti-Semitic provisions which members of the community have historically been subjected to."

In a phone conversation, Schleifer said members feel so strongly about the case that, during an executive board meeting, it was decided to plan a program for the fall, in conjunction with several local law schools, in which participants would discuss the pros and cons and the impact of the decision.

Members are already doing that informally, she said.

"Justice Greiman is one of our most respected members, and we appreciate and acknowledge his brilliance," she said. "The discussion has been very heated about his dissent. Some of our members were very delighted with the dissent and think that should be the law. Others felt that discriminatory clauses have been used to harm Jews in the past and were happy with the majority decision." Within the society, as tradition has it in the Jewish community in general, there are often "three Jews and 10 opinions," Schleifer said.

If the decision stands, she said, some members worry that "anything that anybody would write in a will would be subject to interpretation by a court, and they would be obligated to eliminate any kind of restriction or direction that somebody would be excluded based on religion."

"Many (members and ) people on our board are very supportive of Greiman's position," she said. "They wrote about feeling strongly in favor of the position. Many people said they see a 'second holocaust' by virtue of Jews intermarrying."

Others on the board, some of whom are married to non-Jews, "say this is totally discriminatory and should not be enforced, that it's no different from a provision saying if my grandchild marries a black person they shouldn't be able to inherit," she said.

As for herself, Schleifer said, "I'm of two minds. My gut feels one way. I certainly am concerned about the diminution of the Jewish community. On the other hand I'm also a very strong proponent, as is Justice Greiman, of inclusion and non-discrimination. I'm glad I didn't have to make the decision."

She added that most people in the Jewish community are probably not aware of the decision but should be, because if it is allowed to stand it could affect the way they leave their money to future generations. While a provision such as the one Max Feinberg put in his will may not be enforceable, people may still be able to achieve the same results by using other types of estate planning documents, she said.

"This is certainly the hottest topic we've had in quite a while," she said. "It's been an incredibly energizing experience to see people so invested, so interested and responsive to the various issues raised. I was just installed (as president) a couple of weeks ago, and I feel like this is already an exciting year. This is a really important issue."

Steven H. Resnicoff, a professor at the DePaul University College of Law who is also an attorney, ordained Orthodox rabbi and expert on Jewish law, agrees.

The case "is significant in that it is different from what the majority of jurisdictions" have ruled, he said in a recent phone conversation. "Therefore estate planners were likely to have thought that it was permissible to structure the will the way it was structured, and unless they hear about it and make changes, the intention of the testators (those making the will) are going to be frustrated. The word has to get out so people can accomplish their objectives in a permissible way."

As for the case itself, he sides with the dissent. "I think it's unfair," he said of the majority opinion. "The reason given by the majority was that the provision conflicts with public policy in favor of marriage and against divorce. But it seems to me that's really a smokescreen. What may have rankled some of the people is the fact that someone wanted to influence the heirs' religious choices. That bothers people, particularly people who are not sympathetic to religion," he said. "It seems disingenuous to make this kind of decision based on the supposed public policies in favor of marriage and divorce."

From the perspective of Jewish law, he said, a person is not supposed to disinherit his or her children unless they have converted to another religion, but since this case involved Max Feinberg's grandchildren, it was not inconsistent with Jewish law.

Still, Resnicoff said, "the concept under Jewish law is that generally, even if an heir doesn't behave properly, we hold out hope for that person." So, he said, declaring the grandchildren who married non-Jews "deceased" "doesn't violate the letter of Jewish law but it does violate the spirit - for very different reasons from what the court said."

Meanwhile, Michael Feinberg waits to hear whether the Supreme Court will review the case.

With a different point of view, so does his daughter.

So do many in the Jewish and legal communities. Stay tuned.