Freedom of Disposition and the Dead Hand

- Freedom of disposition = property owners have the nearly unrestricted right to dispose
of property as they please. The law’s function is to facilitate, rather than regulate
- Deadhand = decedent’s control over how he leaves the living; largely deferential to
Shapira v. Union National Bank (Ohio C.P. 1974)
- David died and left his will to his three children, if his son David married a Jewish girl. If
he did not do so, his share would go the State of Israel
- Daniel’s Constitutionality Argument
o Not a 14A issue – the state isn’t the one making the restriction, the court is only
asked to enforce a decedent’s provision. Besides, testator may legally disinherit
his children, it follows that he could put restrictons on inheritance
- Public Policy Argument – court finds only a “partial restraint on marriage”
o 7-year period is gracious; there is a sizeable Jewish community to marry into;
and it is not forcing Daniel himself into a religion.
o Alternative going to Israel shows testator’s conviction was strong
- Not unnecessarily punitive or unreasonably intrusive into someone’s personal decisions
- Courts will not enforce conditions that violate certain public policies: (1) total restraint on
marriage; (2) encouraging illegal activities; (3) vague – i.e. requirement to “be a good Catholic”;
(4) encouraging family disharmony (divorce); (5) waste - destruction of property to no good end
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