A construction of the clause in the deed, — "Reserving, however, the building situated on the last-described premises known as the chapel, together with the right to the land on which said building stands, said building to remain as long as the association owning the same may want it," — necessitates a determination of the extent of territory in which the plaintiff retained a property interest, and the nature of that interest. The investigation involves an ascertainment of the fact of the parties' intention from competent evidence. Johnson v. Conant, 64 N.H. 109. The construction and effect to be given the clause "does not depend upon the absence of all ambiguity. When its meaning is not reasonably and morally certain, the contract is not altered for that reason. However inconclusive the evidence, it is to be weighed. However doubtful the intention, a preponderance of probability is enough to establish it. . . . An equitable result is generally reached if due effort is made to ascertain the fact of intention by balancing probabilities." Smith v. Furbish, 68 N.H. 123, 135,136, 138, 139.
In proceeding to construe the clause, it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances. It will inquire into the "actual, rightful state of the property" at that time (Dunklee v. Railroad, 24 N.H. 489; 3 Wn. R. P., s. 2294), for the parties are supposed to refer to the state of the property for a definition of the terms made use of in the writing.
It appears in this case, that at the time the deed was given the land or lot upon which the chapel stood was situated at the southeasterly junction of two roads; that it was enclosed by fixed *Page 584 bounds, separating it from the balance of the farm; that upon it were horse-sheds constructed for the accommodation of persons coming in teams to attend worship in the chapel; that while the horse-sheds were not absolutely necessary to a reasonable occupation, use, and enjoyment of the chapel, they would render such that the chapel was used for religious purposes by an informal religious group or organization, called the Holiness Society, of which the plaintiff was a member; that the plaintiff owned the and chapel, the other members having no interest in the property; that the chapel, horse-sheds, and fences were plainly visible from points where the defendant traveled in making an examination of the property before purchasing; and that she saw the chapel and sheds, and saw or could have seen the fences, had she desired. This evidence establishes by a balance of probabilities that the parties understood and intended that the words "land on which said building [the chapel] stands" should mean the lot of land upon which the chapel stood and devoted exclusively to chapel purposes. The property retained by the plaintiff was the chapel lot as it existed at the time of the execution of the deed, with the sheds upon it.
The Holiness Society (the association referred to) owned no part of the property; and as the words "owning the same" are meaningless, they may be rejected. Holbrook v. Bowman 62 N.H. 313. The clause will then read: Reserving however the building situated on the last-described premises known as the chapel, together with the right to the land on which said building stands, said building to remain as long as the association may want it.
It matters not whether this clause is technically a reservation or an exception; such a classification lends no aid to its interpretation. The estate retained by the plaintiff in the lot is a fee, not because as a matter of law it "is an exception and not a reservation," but because the clause, "understood in the ordinary and popular sense of its terms," reserves an estate which may be of perpetual continuance. Cole v. Lake Co.,54 N.H. 242, 277, 278; Smith v. Furbish, 68 N.H. 123, 141, 142, 143, 144,145; 1 Wn. R. P. (6th ed.), s. 162. It is not an estate for the life of the plaintiff, for the particular limitation agreed upon by the parties might happen either before or after her decease, or it might never happen. For the same reasons, it it[is] not an estate for years or for any shorter period. It is an estate in fee, determinable upon the association ceasing to want it for chapel purposes. It is not "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 *Page 585 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." First Universalist Society v. Boland, 155 Mass. 171, 174; 15 L.R.A. 231, note; 1 Wn. R. P., s. 167. By such a construction, the intention of the parties will be carried out and effect given to this clause of the deed. So long as this estate continues, and the plaintiff and her successors in title retain the possession, they will have all the rights in respect to it which they would have if they were tenants in fee simple. 1 Wn. R. P., s. 168.
Judgment for the plaintiff.
All concurred.