There is no difference of opinion as to the proposition that the conditions upon which the trustees of Milton College were to take the property after the expiration of Almena Caldwell's life estate were never fulfilled. They never were, and all questions as to the alleged right of that institution may be laid out of the case, so far as concerns the settlement of the question of difference among the members of the court. The record shows that in 1909, nine years prior to the death of Almena, the board of trustees of Cumberland University at a regular meeting, a quorum being present, made the following declaration:
"In view of the report of the dean of the theological faculty, and of the known conditions resulting from the strife going on [in] and out of the courts, between the union and nonunion elements of the church, the existence of which is deeply deplored by the board, we are of the opinion that the overthrow of the theological school has been accomplished, and it is utterly useless for the board to further attempt to maintain it as a department of the University, and we now, with sorrow, declare that the department has failed, and it is hereby discontinued."
At the time of the execution of the will of Hannah Jane Caldwell, and at the time of her death, Cumberland University was an agency of the Cumberland Presbyterian Church, engaged, among other things, in educating men for the ministry of that church. Hannah Jane Caldwell was a member of that church. When Almena died, and, it may be inferred, at the time of the declaration, supra, Cumberland University had passed into the possession of the Presbyterian Church of the United States of America by virtue of the union between the Presbyterian Church of the United States of America and the Cumberland Presbyterian Church. Shortly after the union referred to — or division, as it is spoken of in the answer filed by the Cumberland Church, for a part of that church persisted in the maintenance of a separate organization — the Northern Church, as the Presbyterian Church of the United States of America is frequently called, took possession of the theological department of Cumberland University, as the separate and undenied answer of the Cumberland Church discloses, and, after a futile attempt to operate it, abandoned it, and no longer maintains a theological department therein, nor did it profess, nor does it now teach, the distinctive doctrine of the Cumberland Church, which last-named church thereafter located a theological seminary at McKenzie, Tenn., for the education of its ministers, and that is now the only school which teaches the distinctive doctrines of the Cumberland Church as it existed at the time the will of Hannah Jane Caldwell was made. On the foregoing facts, even though it should be conceded, out of deference to an opinion expressed by one of the judges in consultation, that Hannah's will put the legal title to the estate in remainder after the lapse of the devise to Milton College in the trustees of Cumberland University pending Almena's life estate, the devise to said trustees lapsed when they solemnly declared, in strict accordance with the facts, that the overthrow of the theological school, meaning the theological department of Cumberland University, had been accomplished that said department had failed, and was thereby discontinued.
This was in effect a renunciation of the devise, and caused it to lapse as effectually as if the charter of the corporation had expired, and, the specific devise of the estate in remainder having lapsed, the legal title to that estate, on the concession stated, passed over to the heirs of testator, Hannah J. Caldwell, *Page 595 and such in this state would have been the effect even though there had been a residuary clause. Johnson v. Holifield,82 Ala. 123, 2 So. 753. Nor does any sufficient reason appear why this result of the lapse should be postponed to the death of Almena. The theological department of the Cumberland University, to which the estate in remainder was devised, was as dead as Milton College, and with no better chances of resurrection. Indeed, it might with reason be said that the lapse occurred at the time when the Northern Church took over the university, for upon the whole it appears that testator, Hannah J. Caldwell, intended that her bounty should not inure to the benefit of any theological department of any institution not under the control of the Cumberland Church; but, however that may be, we do not see how the formal resolution of the trustees can be accepted as anything less than a renunciation, and so as a lapse, of the devise in question. After that resolution, on the hypothesis that title vested originally in the trustees, there was, not a mere possibility of a reverter, but a reversion actually accomplished. The resolution to abandon the department was expressed in terms which left no room for doubt or reservation, and if a subsequent effort to revive a department of theology might have had any effect upon the status of right and title thus established — which we do not concede — as to that it seems enough to say that no such effort was made.
But upon the whole instrument it does not appear to have been the will of Hannah J. Caldwell that the legal title to the estate in remainder should vest in the trustees of Cumberland University pending the life estate of Almena. Rather it appears to have vested in the heirs of the testator, subject to be divested by a sale by the executor after testator's death. True, the will provided, in the event of a lapse of the devise for the benefit of Milton College, a gift of the "remainder of said real estate" to the trustees of the Cumberland University; but further provisions make it reasonably clear that testator intended, not a devise of the real estate itself, but of a fund to be raised out of said estate by the executor, who was directed to sell the same, execute title to the purchaser, and pay over the proceeds to the trustees, with another provision which lodged a measure of discretion in the executor, viz. in the event the property failed to bring 75 per cent. of its value as assessed according to a provision of the will, the executor named was authorized to offer the property for sale "at such time as to him may [might] seem best." If this created a personal trust in the executor named, as Judge BROWN is inclined to hold, then —
"the rule is that, wherever the instrument creating the trust confers upon the trustee any power in trust, or imposes any duty relating to the control or management of the trust estate, or establishes any agency to be performed by the trustee as such, the legal title will vest in him in order to enable him to administer the trust." 2 Beach on Trusts, § 395.
On that theory of the case, the legal title conferred upon the executor as trustee failed when the devise to Cumberland University lapsed, and thereupon vested in the heirs, or, in any event as to that, was thereafter held by the executor in trust for the heirs of testator. The writer holds that there being no devise to the executor and the power of sale being such as might be executed in the ordinary routine of administration, title did not vest by implication in the executor (Patton v. Crow, 26 Ala. 426; Tarver v. Haines,55 Ala. 503), but remained all the while in the heirs at law of Hannah J. Caldwell, of whom Almena Caldwell was one, subject to be divested for the benefit of the theological department of the Cumberland University, and that, when the trust for that department failed, the remainder interest was subject to disposition by her. There being no equities as among the Caldwell parties, there being no reason why Almena or her devisees should not take a share of the property not disposed of by the will of Hannah J., as the event has shown, and the decree rendered in the trial court having adjudicated their claims in accordance with the views here expressed, a majority of this court holds that the decree should be affirmed in toto. We agree, of course, except as herein stated, in the opinion prepared by Judge McCLELLAN.
Application for rehearing granted, judgment of reversal set aside, and affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.