The defendant maintains that if the devise to the trustees of the village of Gloversville shall be held invalid on account of remoteness, the prior devise in favor of Benjamin Bailey is to be construed as conveying a fee simple; but if wrong in that position, he then insists that the devise to the trustees is effectual and that title out of the plaintiff is thus established. If successful in either position, he will be entitled to prevail in the action.
First. Assuming the devise to the village trustees to be void, it is, for the purpose of determining the effect of the prior disposition, to be considered to be stricken out of the will; and if it could be established that such prior devise would have carried a fee simple if nothing further had been said, it is clear that the ineffectual attempt to make a further disposition of the property, by way of a conditional limitation, will not prejudice the prior estate. But the devise to Bailey is not of a fee simple, but only of the use of the premises "until Gloversville shall be incorporated as a village." The testator then attempts to give a fee simple to the trustees of the contemplated village. If this is effectually done, the estate of the village corporation commences at the time Bailey's estate expires, not by way of substitution or in derogation of the estate before given, but as a disposition of the remainder of the *Page 104 whole property in the land, after the devise to Bailey had been satisfied according to its own limitation. The plaintiff offered to prove that Gloversville was incorporated at a certain date after the testator's death; and, for the purpose of determining the present appeal, it may be considered as proved. That date, then, marked the termination of the estate of Bailey, according to the express terms of the devise by which it was created. That estate having terminated, it is quite immaterial to him whether the ulterior devise was valid or void. It cannot increase or diminish the duration of his estate, whichever way it shall be determined.
The cases relied on by the defendant's counsel are plainly distinguishable from the present. In all of them the first devise was of a fee simple or fee tail by the terms of the limitation, subject to be defeated by an executory devise, which, if it took effect, displaced the estate of the first devisee. In such cases, if the executory or conditional limitation fails on account of remoteness or other cause, or if the fact upon which it is limited to arise never takes place, or if it becomes impossible, the estate of the first devisee remains unimpaired. Such were the cases arising under the will of Medcef Eden. He had two sons, Medcef and Joseph, to each of whom he devised separate pieces of land in fee, making use of the usual words of inheritance. In a subsequent clause he declared that if either of his said two sons should depart this life without lawful issue, his share or part should go to the survivor; and in case of both their deaths without lawful issue, to his brother and sister living in England. It was held that the failure of issue mentioned was not indefinite, but referred to the period of the death of the sons, and that consequently they did not respectively take estates tail but estates in fee, subject to be defeated by the executory limitations in favor of each other. Both the brothers died successively without issue, and then a further question arose whether the ulterior limitation in favor of the testator's brother and sister, which was in somewhat different *Page 105 language — the word survivor being omitted — took effect; but it was held that the language of the will created a fee tail in the survivor of the two brothers, which the statute converted into a fee simple, thus cutting off the limitations in favor of the brother and sister. It was also considered too remote, as depending upon an indefinite failure of issue. (Anderson v.Jackson, 16 John., 382; Lion v. Burtiss, 20 id, 483;Wilkes v. Lion, 2 Cow., 333.) It will be perceived that the primary devises and, also the cross limitations, were of estates in fee, subject to be defeated by the taking effect of the subsequent limitations. When, therefore, it was a question whether one of those estates in fee had come to an end, it depended upon the consideration whether the next limitation was void or valid; for if void the original words of limitation were absolute and unconditional, and being in themselves sufficient to pass a fee, the estate was preserved. Doe v. Rucastle (8Mann., Gr. Scott, 876) and Jackson v. Brown (13 Wend., 437), also relied upon by the defendant's counsel, are supposed to be hostile to this distinction, because the devise was, in terms, for the life of the devisee and then to his issue; but it was held that the rule in Shelly's case applied, and that the devisee took an estate tail, under the statute de donis, the word "issue" being considered a word of limitation and not of purchase. The cases upon this branch of the law reject the words denoting an estate for life in the first taker, and hold that he is the first tenant in tail. The authorities cited therefore fail to show that, where there is a devise of land determinable upon the happening of a collateral event, and there is then a further limitation which fails for illegality or other cause, the first devise is enlarged into a fee simple or other greater estate than that defined by the language by which it is limited; and I have been unable to find any case which establishes that position. The rule, as we consider it to exist, is laid down with great distinctness in Lewis' Treatise on the Law of Perpetuities (p. 657), thus: "The invalidity of a limitation on account of remoteness *Page 106 places all prior gifts in the same situation as if it had been entirely omitted in the dispositive system. The gift of a fee simple, therefore, or of the entire interest, subject to an executory limitation which is too remote, takes effect as though it had been originally limited absolutely, or free from any divesting gift. A limitation of a life estate or other partial interest, with a remainder expectant on it which is void for remoteness, of course remains in statu quo prius, neither receiving enlargement nor suffering diminution. And the like holds with respect to executory limitations, not operating to divest previous partial estates, but expressed to take effect at some period subsequent to their determination; the limited interest remains as originally created, both as to character and extent, without reference to the manner of devolution of the property after its expiration." (See, to the same effect, 2Fearne on Rem., 12 to 15, 134, ed. 1844.)
We concur in this explanation of the doctrine, and think it decisive of the present question. This conclusion is as consistent with all we can know of the intentions of the testator as it is possible to make it. It is true, as is argued, that he did not design to die intestate as to any portion of his estate in this land. He intended to give a certain interest to Bailey and the residue of the estate for public purposes. Bailey has enjoyed the interest provided for him; but we see that as to the rest, assuming the further limitation to be void, the rules of law do not permit his intentions to be carried into effect. We are asked to conjecture that if he had been aware of the rule of law he would have given the entire estate to Bailey. This we do not know. We have no means of determining what, in that event, he would have done with the remaining interest in the land. We, therefore, hold it to be undevised. The law then steps in and appoints the succession to the testator's heir, precisely as it would have done with the whole interest if he had made no will at all. *Page 107
Second. The remainder, after the expiration of Bailey's estate, is not limited upon lives, but is to commence after the happening of an event which might occur soon, or at a very remote period, or might not happen at all. Such a limitation is void for remoteness, unless the circumstance that the gift is to a charitable use affects the case. (1 R.S., 723, §§ 14, 15;Hone's Ex'rs v. Van Schaick, 20 Wend., 564.)
There are two methods by which the absolute ownership and power of alienation may be suspended: one is by creating a future estate by way of executory devise or contingent remainder. In such cases, as it cannot be known in whom the future estate will ultimately vest, and as the person in whom it will so vest may not be in existence, no person can convey an absolute fee. The present case belongs to this class of dispositions tending to perpetuity. The village corporation, if it should be created, would be the recipient of the remainder in fee, but until it should come into existence the ultimate fee would be in abeyance. The other manner is by annexing to a present absolute estate in fee a trust, which by the general provisions of law would render it inalienable (1 R.S., 730, § 66), or by directing the income or profits to be applied in perpetuity to some charitable purpose, in which case an alienation would be hostile to the object of the conveyance. The case of Williams v. Williams (4Seld., 525) belonged to the last mentioned class, and this court held that the statute did not apply. It was shown that gifts of property, for the purpose of devoting its income to charity, formed an established exception to the law against perpetuities, as it existed before the enactment of the Revised Statutes, and it was held not to be the intention of the legislature, in revising the branch of the law relating to perpetuities, to abolish that feature of the law of charities which allowed the income of property to be perpetually devoted to charitable purposes. It is obvious from this statement that the present case does not *Page 108 fall within the principle of that decision. By the terms of this devise the property, during the whole indefinite period of the suspension of the power of alienation, is devoted to a private use. The charitable gift might not take effect until some very remote period, or it might not take effect at all, though there might remain a possibility that it would arise, and thus the estate would remain inalienable for an indefinite period, without the devotion of any of its income to the purposes of charity. It follows from this that there is nothing to take the case out of the statute, and consequently there is no ground upon which the devise to the trustees of the village can be sustained.
There is no devise of the residue of the testator's estate, but only a power in the executors to sell, and this does not give an estate by implication. (1 R.S., 729, § 56.) The land therefore belongs to the plaintiff as the heir at law of the testator, and she should have been permitted to recover it.
The judgment of the Supreme Court must therefore be reversed and a new trial awarded, with costs to abide the event.
The decision was put upon the ground stated in the opinion of STRONG, J., and first discussed in that of DENIO, J.; JOHNSON, Ch. J., COMSTOCK, HARRIS, PRATT and ROOSEVELT, Js., concurring. JOHNSON, Ch. J., COMSTOCK and ROOSEVELT, Js., concurred with DENIO, J., as to the point secondly considered in his opinion, but the court did not pass upon it.
Judgment reversed and new trial ordered. *Page 109