I am satisfied, for the reasons stated, that if Gloversville has been incorporated, and the devise to the trustees cannot have effect, the defendant, as the grantee of Bailey, has no estate in the premises in question, and, therefore, that the court below, at the trial, erred in deciding the contrary, and in the rejection of the evidence offered to prove that the incorporation had taken place.
If the village of Gloversville has been incorporated, and the trustees have an estate in the land under the devise to them, the plaintiffs, of course, cannot recover, as they must have title in themselves to maintain the action. The defendant may avail himself of the title of the trustees, although not connected with it, as a bar to the action. But if the trustees cannot take the estate designed to be given them, which appears to have been assumed by the counsel and the court at the trial, and Bailey's title has ceased by its own limitation, the testator, as to this land, after the determination of Bailey's interest, died intestate, and it belongs to the plaintiff, in right of the wife as heir-at-law.
The question of the validity of the devise to the trustees does not arise in this appeal, as it does not appear that Gloversville has been incorporated. Until that fact is proved, it will not appear that the estate of Bailey has terminated, and the question upon the devise will not be reached. It was considered, at the trial, that the point was involved in the question of evidence, in reference to materiality; that if the devise to the trustees was void, the estate of Bailey was an absolute fee; if valid, the title would be out of the plaintiffs, and, therefore, the evidence excluded was immaterial - it would not, in either case, benefit the plaintiff. But this view is erroneous in two respects; it could not properly be assumed, if the devise over was valid, that the plaintiffs had not the title, as the trustees may have refused to accept the devise, or lost their rights under it and the plaintiffs were entitled to give proof on the subject, and the evidence was important to show that Bailey's estate had ceased. It is not intended now to express or intimate any opinion as to the validity of the devise over.
My conclusion is, that the judgment should be reversed and a new trial granted, with costs to abide the event.
Allen, J., in
155 Massachusetts, 171. - 1892.
The grant to the plaintiff was to have and to hold, etc., " so long as said real estate shall by said society or its assigns be devoted to the uses, interests, and support of those doctrines of the Christian religion," as specified. " And when said real estate shall by said society or its assigns be diverted from the uses, interests, and support aforesaid to any other interests, uses, or purposes than as aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever vested in the following named persons," etc. These words do not grant an absolute fee, nor an estate on condition, but an estate which is to continue till the happening of a certain event, and then to cease. That event may happen at any time, or it may never happen. Because the estate may last forever, it is a fee. Because it may end on the happening of the event, it is what is usually called a determinable or qualified fee. The grant was not upon a condition subsequent, and no re-entry would be necessary; but by the terms of the grant the estate was to continue so long as the real estate should be devoted to the specified uses, and when it should no longer be so devoted, then the estate would cease and determine by its own limitation. Numerous illustrations of words proper to create such qualified or determinable fees are to be found in the books, one of which, as old as Walsingham's Case, 2 Plowd. 557, is "as long as the church of St. Paul shall stand." Brattle Square Church v. Grant, 3 Gray, 142, 147; Easterbrooks v. Tillinghast, 5 Gray, 17; Ashley v. Warner, 11 Gray, 43; Attorney General v. Merrimack Manuf. Co., 14 Gray, 586, 612; Fifty Associates v. Howland, 11 Met. 99, 102; Owen v. Field, 102 Mass. 90, 105; 1 Washb. Real Prop. 3d ed. 79; 2 Washb. Real Prop. 3d ed. 20, 21; 4 Kent Com. 126, 127, 132, note; 2 Crabb, Real Prop. §§ 2135, 2136; 2 Flint, Real Prop. 230, 232; Shep. Touchst. 121, 125.
A question or doubt, however, has arisen, though not urged by counsel in this case, whether after all there is now any such estate as a qualified or determinable fee, or whether this form of estate was done away with by the statute quia emptores. See Gray, Rule against Perpetuities, §§ 31-40, where the question is discussed and authorities are cited. We have considered this question, and whatever may be the true solution of it in England, where the doctrine of tenure still has some significance, we think the existence of such an estate as a qualified or determinable fee must be recognized in this country, and such is the general consensus of opinion of courts and text writers. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 168; Leonard v. Burr, 18 N. Y. 96; Gillespie v. Broas, 23 Barb. 370; State v. Brown, 3 Dutch. 13; Henderson v. Hunter, 59 Penn. St. 335; Wiggins Ferry Co. v. Ohio & Mississippi Railway, 94 111. 83, 93; 1 Washb. Real Prop. 3d ed. 76-78; 4 Kent Com. 9, 10, 129. See also, of English works in addition to citations above, Shep. Touchst. 101; 2 Bl. Com. 109, 154, 155; 1 Cruise, Dig. tit. 1, §§ 72-76; 2 Flint. Real Prop. 136-138; 1 Prest. Est. 431, 441; Challis, Real Prop. 197-208.
Since the estate of the plaintiff may determine, and since there is no valid limitation over, it follows that there is a possibility of reverter in the original grantor, Clark. This is similar to, though not quite identical with, the possibility of reverter which remains in the grantor of land upon a condition subsequent. The exact nature and incidents of this right need not now be discussed, but it represents whatever is not conveyed by the deed, and it is the possibility that the land may revert to the grantor or his heirs when the granted estate determines. Challis, Real Prop. 31, 63-65, 153, 174, 198, 200, 212; 1 Prest. Est. 431, 471; Newis v. Lark, 2 Plowd. 403, 413; Shep. Touchst. 120; 2 Washb. Real Prop. 3d ed. 20, 579; 4 Kent Com. 10; Smith v. Harrington, 4 Allen, 566, 567; Attorney General v. Merrimack Manuf. Co., 14 Gray 586, 612; Brattle Square Church v. Grant, 3 Gray, 142, 147-150; Owen v. Field, 102 Mass. 90, 105, 106; Gillespie v. Broas, 23 Barb. 370; Gray, Rule against Perpetuities, §§ 33, 34, 39, and cases cited.