[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 98 The devise to Bailey is, by the terms of it, "until Gloversville shall be incorporated as a village." These words are part of the devise itself. The use of the land, which imports the land, is given to him until the happening of that event. The event was contingent when the will was made, and at the death of the testator. Had the will stopped here, in respect to a disposition of this land, no one would doubt that the estate of Bailey would have been limited in duration to the contingency mentioned. He would have taken a base or qualified fee; an estate which might have continued forever, but which would have been liable to determination by the occurring of the contingency. The qualification to the devise would have created what is termed in the books a collateral limitation, making the estate determinable upon an event "collateral to the time of its *Page 99 continuance." (4 Kent's Com., 129; Fearne, ed. of 1826, 12to 15, and notes.) Among the instances of collateral limitations are, to a man and his heirs, tenants of the manor of Dale; or to a woman during widowhood; or to C till the return of B from Rome; or until B shall have paid him twenty pounds. (4Kent, 129; 1 Shep. Touch., 125; 2 Crabb's Law of RealProp., § 2135; 2 Bl. Com., 155; Fearne, 12, 13, andnotes.) In respect to such limitations, the rule is, that "the estate will determine as soon as the event arises, and it never can be revived." (4 Kent, 129, and cases cited; Lewis onPerpet., 657; Crabb's Real Prop.; § 2135.)
I am unable to see how the devise to Bailey, by the words of the will giving him the use of the land until the event above specified, is affected, as to the duration of the estate, by any other part of the will. The devise over, in the same clause of the will — when Gloversville shall be incorporated — to the trustees of said village, to be disposed of for the purpose and with the proviso therein stated, is a further disposition of the land, to take effect upon the termination of the estate of Bailey. It was not intended thereby to abridge Bailey's interest, but to give the land to others when his interest had ceased. The language of the devise over is, "and then," obviously upon the incorporation of the village, "to the trustees." The incorporation is fixed as the limit of the prior estate and the period of commencement of the subsequent one. Whether, therefore, the latter can be upheld, or is invalid for any cause, can make no difference with the former estate, which had come to its appointed end by an event wholly independent of the operation or failure of that attempted to be created by the will to succeed it.
If the devise of the first estate had been in fee, with a proviso, that, upon the contingency expressed in the will, the trustees should have the land, the case would be very different. The first estate would then be determined only by the second taking effect. That would be according to *Page 100 the language and spirit of the limitation. The limitation, in such a case, would be what is denominated a conditional limitation. There would be an estate in fee, determinable, during the regular period of its continuance, by another estate taking effect in an event provided for. And if the trustees could not take the land, the estate in fee would continue, as if no provision for another estate, in defeasance of it, had been made. (4 Kent, 127; Lewis on Perpet., 531, 535, 657, 658.)
It was doubtless the intention of the testator to dispose absolutely of the entire interest in the land, but he intended to give the land to Bailey until a particular event, and then to the trustees. Assuming the devise to the trustees to be void, his intent, as to that, must fail; but there is no ground for claiming that, in that case, he intended Bailey's estate should continue beyond the limit prescribed in the devise to him. The event was not foreseen, and consequently no provision was made for it. The court cannot supply, what probably the testator would have done, if he had known the law when he framed the will. (Pickering v. Langdon, 22 Maine, 428, 429; Chapman v.Brown, 3 Burr, 1634; Doo v. Brabant, 4 Durn. East, 706.)
Several cases arising upon the Eden will are referred to and relied upon in favor of the defendant. (Anderson v. Jackson, 16 John., 382; Lion v. Burtiss, 20 John., 483; Wilkes v. Lion, 2 Cow., 333; Waldron v. Gianini, 6 Hill, 601.) By that will certain lands were devised to each of two sons of the testator in fee. It was then directed that if either should die without issue, his share should go to the survivor; and in case of both their deaths without issue, the testator's brother and sister should have all the property. It was held that the limitation over to the surviving son was valid as an executory devise, and, having taken effect in his favor, the Supreme Court held that he became seized, of the land devised to the deceased son, in fee tail with a remainder expectant in favor of the brother and sister, which estate *Page 101 tail the statute converted into a fee simple absolute. In the Court of Errors, the devise to the brother and sister was held void, the Chancellor concurring with the Supreme Court as to the ground of invalidity; but one of the Senators placed his opinion on the ground that the latter devise was originally limited upon too remote a contingency, an indefinite failure of issue of the previous devisees. No division of the court was taken as to the ground. There is nothing here in conflict with the views above presented, or which can aid the defence.
Some other cases are cited by the defendant's counsel. InJackson v. Brown (13 Wend., 437), the testator devised lands to his son, S.B., for life, with remainder to the first son of S.B. for life, with remainder to the first and every other son and sons of the eldest son of his son, S.B., successively, to hold the same in tail male. The court decided that the limitation over to the great-grandson was too remote, and that the particular intent of the testator, to give life estates to the sons, must therefore fail; but, to effect the general intent, to keep the estate in his family as long as possible, construed the devise to give a life estate to the son and an estate tail to the grandson. The point of the case is, that the general intent of a testator, apparent upon a will, will be carried into effect, if practicable, although his particular intent cannot prevail. In the present case no intention of the testator, as to the disposition of the land after the termination of the first estate, appears upon the will, except that which, assuming the devise over to be void, the law will not execute.
In Doe ex dem. Cannon v. Rucastle (8 Man., Grang. Scott, 876), the testator devised land to his son for life, and from and after his death gave the same to the issue of his son, and if he should not have any, to the testator's heirs at law. The court decided that the son took an estate tail. In Ibbetson v. Ibbetson (10 Simons, 495), the only point adjudged was that a trust of personal estate was void for remoteness. *Page 102 These cases, and Tollemache v. Coventry (8 Bligh, N.S., 547), cited in the last case, have no application to the one before the court. Mortimer v. Frost (2 Simons, 274) andMackworth v. Hinkman (2 Keen, 658) are similar to Jackson v. Brown, before stated.
The foregoing are the principal cases cited on the part of the defendant; the remaining ones are to rules about which there is no dispute.
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 grantor 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 on 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 *Page 103 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 that 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.