Brown v. Independent Baptist Church of Woburn

• Decision Date: 14 April 1950
• Citation: 91 N.E.2d 922,325 Mass. 645
• Parties: BROWN v. INDEPENDENT BAPTIST CHURCH OF WOBURN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 645

91 N.E.2d 922

BROWN v. INDEPENDENT BAPTIST CHURCH OF WOBURN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 14, 1950

Argued Jan. 6 1950.

H M. Leen, Boston, for trustee under will of heirs at law of Sarah converse.

G. Newhall, Lynn for appellants, under will of Sarah Converse.

Before QUA, C. J and RONAN, WILKINS and COUNIHAN, JJ.

QUA, Chief Justice.

The object of this suit in equity, originally brought in this court, is to determine the ownership of a parcel of land in Woburn and the persons entitled to share in the proceeds of its sale by a receiver.

Sarah Converse died seised of the land on July 19, 1849, leaving a will in which she specifically devised it 'to the Independent Baptist Church of Woburn, to be holden and enjoyed by them so long as they shall maintain and promulgate their present religious belief and faith and shall continue a Church; and if the said Church shall be dissolved or if its religious sentiments shall be changed or abandoned, then my will is that this real estate shall go to my legatees hereinafter named, to be divided in equal portions between them. And my will further is, that if my beloved husband, Jesse Converse, shall survive me, that then this devise to the aforesaid Independent Church of Woburn, shall not take effect till from and after his decease; and that so long as he shall live he may enjoy and use the said real estate, and take the rents and profits thereof to his own use.' Then followed ten money legacies in varying amounts to different named persons, after which there was a residuary clause in these words, 'The rest and residue of my estate I give and bequeath to my legatees above named, saving and except therefrom the Independent Baptist Church; this devise to take effect from and after the decease of my husband; I do hereby direct and will that he shall have the use and this rest and residue during his life.'

The husband of the testatrix died in 1864. The church named by the testatrix ceased to 'continue a church' on October 19, 1939.

The parties apparently are in agreement, and the single justice ruled, that the estate of the church in the land was a determinable fee. We concur. First Universalist Society of North Adams v. Boland, 155 Mass. 171, 174, 29 N.E. 524, 15 L.R.A. 231; Institution for Savings in Roxbury and its Vicinity v. Roxbury Home for Aged Women, 244 Mass. 583, 585-586, 139 N.E. 301; Dyer v. Siano, 298 Mass. 537, 540, 11 N.E.2d 451. The estate was a fee, since it might last forever, but it was not an absolute fee, since it might (and did) 'automatically expire upon the occurrence of a stated event.' Restatement: Property, § 44. It is also conceded, and was ruled, that the specific executory devise over to the persons 'hereinafter named' as legatees was void for remoteness. This conclusion seems to be required by Proprietors of Church in Brattle Square v. Grant, 3 Gray 142, 152, 155-156, 63 Am.Dec. 725; First Universalist Society of North Adams v. Boland, 155 Mass. 171, 173, 29 N.E. 524, 15 L.R.A. 231, and Institution for Savings in Roxbury and its Vicinity v. Roxbury Home for Aged Women, 244 Mass. 583, 587, 139 N.E. 301. See Restatement: Property, § 44, illustration 20. The reason is stated to be that the determinable fee might not come to an end until long after any life or lives in being and twenty-one years, and in theory at least might never come to an end, and for an indefinite period no clear title to the entire estate could be given.

Since the limitation over failed, it next becomes our duty to consider what became of the possibility of reverter which under our decisions remained after the failure of the limitation. First Universalist Society of North Adams v. Boland, 155 Mass. 171, 175, 29 N.E. 524, 15 L.R.A 231; Institution for Savings in Roxbury and its Vicinity v. Roxbury Home for Aged Women, 244 Mass. 583, 587, 139 N.E. 301. Restatement: Property, § 228, illustration 2, and Appendix to Volume II, at pages 35-36, including note 2. A possibility of reverter seems, by the better authority, to be assignable inter vivos (Restatement: Property, § 159; Sims, Future Interests, § 715; see Tiffany, Real Property, 3d Ed., § 314, note 31, and must be at least as readily devisable as the other similar reversionary interest known as a right of entry for condition broken, which is devisable, though not assignable. Dyer v. Siano, 298 Mass. 537, 539, 11 N.E.2d 451; Hayden v. Inhabitants of Stoughton, 5 Pick. 528, 535-540; Brigham v. Shattuck, 10 Pick. 306; Austin v. Cambridgeport Parish, 21 Pick 215, 223-224; Clapp v. Wilder, 176 Mass. 332, 337, 57 N.E. 692, 50 L.R.A. 120. Battistone v. Banulski, 110 Conn. 267, 147 A. 820; G.L. (Ter.Ed.) c. 191, §§ 1, 24; Restatement: property, § 165 (see comment f). Simes, Future Interests, § 732. See Tiffany, Real Property, 3d Ed., § 314, note 34; Steel v. Cook, 1 Metc. 281. It follows that the possibility of reverter passed under the residuary clause of the will to the same persons designated in the invalid executory devise. It is of no consequence that...