The cause was continued for advisement, and the opinion of the Court was afterwards drawn up by
Putnam J.The first question which the case presents
for decision is, whether the devise was upon a condition precedent or subsequent. We are all clearly of opinion that it was upon a condition subsequent, and that the estate vested immediately in virtue of the devise. The fee did not rest in abeyance until the schoolhouse should be built, but was to be forfeited if it should not be built in a reasonable time.
The next inquiry is, whether the devisees have forfeited the estate by reason of their not having built the schoolhouse, according to the condition of the devise. Where no particu lar time is mentioned for the performance of a condition sub sequent, the law requires that it should be done in a reasonable time. It is otherwise of conditions precedent, which are for the advantage of the party performing the first act. They may be performed at the will of the party and at such time as he pleases. Plowd. 16. But in the case at bar benefit was conferred presently by the devise of the estate. And the party entitled to have the estate upon a forfeiture is not to be bound by the mere will and pleasure of the devisees as to the time or manner of performing the condition, for that would in effect destroy the condition. They might never perform it. The devisees are therefore to perform in a reasonable, viz. a convenient time, —<c according to the nature of the thing to be done.” Com. Dig. Condition, G 5. A devise upon condition to pay debts ; the debts must be paid in convenient time.
The devisees, by accepting this devise and entering into the land, undertook to build the schoolhouse in a convenient time, within one hundred rods of the place where the meetinghouse then stood. It is said in Co. Lit. 208 b, that if one make a feoffment in fee, upon condition that the feoffee shall enfeoff a stranger, and no time limited, the feoffee shall not have during his life to make the feoffment, for then he should take the profits in the mean time to his own use, which the *535stranger ought to have, and therefore he ought to make the feoffment as soon as conveniently he may; and so it is of the condition of an obligation.
The intent of the testator was, that the schoolhouse should be built at the place which he designated; not that the devisees should have the land without the charge. The building of the house is a local act, which the devisees should have performed, for the accomplishment of the benevolent design of the testator, in a convenient time. Upon the same reason as is said in Bothy's case, 6 Co. 31, that where the act is local, and the obligor may perform it for the benefit of the obligee in his absence, there the obligor ought to do it in a convenient time. The house might be built by the devisees without the concurrence of any other party, so the case is not like that which is put, of a local act to be done with the concurrence of an obligor and obligee ; in which case the obligor hath his lifetime to perform, unless hastened by request. It is clear to our minds, that the devisees were not at liberty to postpone the building at their own pleasure, but that they have forfeited the land, if they have permitted an unreasonable time to pass without performing the condition.
Of that the Court must determine from the facts' which are found.1 The will was proved in 1805. In 1806 the inhabitants voted to accept the estate and perform the condi ti on, — twenty years before the action was brought, —and no. schoolhouse has been built. The inhabitants of the town, during this long period, often met and passed votes contradictory and trifling, and still continuing to take the rents and profits of the land. They have omitted to do in that long period of time, what might have been done in a month as well as in a century. It seems to us that they have not conformed to the manifest intention of the testator. They have forfeited the estate.
We are next to consider who are entitled to the estate upon its forfeiture. Does it belong to the heirs at law of the testator, or to the plaintiffs, who represent the residuary devisee, to whom the testator devised all the remainder of his *536estate, of what name or nature soever, or wherever the same might be found ?
In the construction of wills, the first and great object is to give effect to the intent of the testator, if it can be done without violating any rules of the law.1 And it is a rule, that the heir at law is not to be disinherited, unless such appeals clearly to be the intention of the devisor.2 If the devise of land should be void because the devisee is incapable of taking, and the devisor should give all his real estate not before disposed of, the land would be included in the residuary clause. It is said in Perkins, § 564, that in the case of a devise, toe remainder shall not be avoided by the entry of the heir for the condition broken, because the will of the devisor shall he ooserved in as much as it may be.
So in Benet v. French, cited in Sherewood and Nonne’s case, 1 Leon. 251, where a man seised of lands devised a parcel called Gages to the erecting of a school, and all his otner lands to French in fee, the devise of Gages was held void, because no person was named ; and it was further nolden, that it passed by the general words to French. I suppose the court construed it to mean other lands not before devised, because the Gages were not before devised, by reason of there being no devisee named who should take the land, and so passed to the residuary devisee. Upon the same principle, if the devisee died before the making of the will, the devise is void, and the land shall pass by the residuary clause. Doe v. Sheffield, 13 East, 526, where the testator devised land to the sisters of J. H. as tenants in common. There had been three sisters of J. H., but two died before the testator. He then gave all his messuages, lands, &c., not therein before disposed of, to Scott. And the court held, touching the point we are now considering, that if the surviving sister had not taken the whole, but only a third, the residuary devisee would have taken the two thirds, because the testator made no disposition of the two thirds, as the devisees of the two thirds died before the making of the will. *537it would not be considered as a valid devise, for the want of a devisee in existence at the time of making the will; and no better than if die devise had been of a particular estate to a monk ; which would be void, and the remainder-man would take immediately, as the monk was not capable of taking at all. Perk. § 566, 567.1
But where there was a devisee in existence, capable of taking the land at the time when the will was made, but who should die before the will should be consummated by the death of the devisor, it would be considered as a lapsed devise, And in such case, inasmuch as the devisor had disposed of his whole interest in the land, if he had died immediately after making the will, the estate would have vested in the devisee. The law supposes that the devisor did not contemplate or intend that the residuary clause or devise of all his land not before disposed of, should embrace land contained m the lapsed devise. The residuary clause touching real estate is to include all the interests of the devisor which he had not disposed of when the will was made, and the heir is not to be ■ defeated on account of the contingency of the death of the devisee after the making of the will; which the devisor could not foresee.
It is true that in regard to personal property, the law allows the residuary legatee to take whatever shall eventually turn out not to be disposed of, whether it arise from accident or design. And the counsel for the plaintiffs have argued,-that there is no good reason for the distinction, and that lapsed devises of real estate should go to the residuary devisee, as well as lapsed legacies of personal. There is however p marked difference in the effect of a will upon persona], and upon real property. The personal estate which is acquired after the will passes by the will, but real property acquired after the will does not pass, and is not affected by any disposition in a will made before its acquisition. The testator can devise only such real estate as he has at the time of making ‘he will.1 The law upon this subject, viz. that the heir, and not the residuary legatee or devisee shall have the advantage *538of lapsed devises, is now settled, and has been so held for more than half a century. Doe v. Underdown, Willes, 293, and the cases cited, particularly Wright v. Hall, cited in Willes, 299. In which last case Lord King says, “ The testator makes his will as if he were to die that moment, and it cannot be presumed that he intended to devise a contingency which afterwards happened, (viz. the death of the devisee after the will and before the devisor,) and which he could not foresee.”
So in Gravenor v. Hallum, Ambl. 645, the Lord Chancellor Cambden considers the law to be settled. So Lord Chancellor Hardwicke, in Durour v. Motteux, 1 Ves. sen. 321. See also Cambridge v. Rous, 8 Ves. 25.
We are disposed to think this point settled, and upon as good reason certainly as the rule applicable to lapsed personal legacies.
But the devise under consideration cannot be viewed as lapsed. A lapsed devise is where the devisee dies after the making of the will and before the testator. But here the devisees remain as a corporation aggregate, and the estate vested in them as a conditional fee simple. It was not therefore technically a lapsed devise. We are now to consider the effect of it.
The third rule laid down by Chief Justice Willes, in Doe v. Underdown, and which has been recognised in a late case of Doe v. Scott, 3 Maule & Selw. 300, is, that when a testator has given away all his estate and interest in certain lands, so that if he were to die immediately nothing remains undisposed of, he cannot intend to give any thing in these lands to his residuary devisee. That would be properly the case of a lapsed devise of real estate, and the heir, and not the residuary devisee, shall have the benefit of it. The converse of that proposition, viz. that if the testator has not given away all his interest in the land, so that if he were to die immediately something would remain undisposed of, it is to be presumed that he intended to give the remainder in such lands to the residuary devisee, was the rule adopted in the case of Doe v. Scott ; and that rule we think must be applied to the case at bar.
*539In Doe v. Scott the testator devised all his lands to J. M. tnd his heirs for ever, provided that he or his heirs do within six months after the decease of the devisor assure certain premises to R. M. and his children, viz. to R. M. for life, and his children in fee ; and he gave all the rest of his lands wheresoever &c to John and James Scott. J. M. and R. M. died aftei the making of the will and before the testator, bachelors. „ And the case was determined in favor of the Scotts, the residuary devisees, on the ground, that there was no devise of the fee absolutely ; for that if J. M. did not assure to R. M. for life, remainder in fee to his children, there would be an interest in the devisor undisposed of by that devise, which would pass by the residuary clause. Lord Ellenborough, in delivering the opinion, states with approba tion the rule laid down by Chief Justice Wittes in Doe v. Underdown, that the intent of the testator is to be taken as things stood at the time when the will was made, and that the devise must mean the rest and residue unbequeathed at the time of making the will:
Now we think the principle of that decision is exceedingly applicable to the case at bar. In this case, as in that, the devise was of a conditional and not of an absolute fee. There was a contingent interest which the devisor might have disposed of if he had pleased, to take effect upon the forfeiture of the estate ; and he has in the residuary clause used words which are broad enough to pass the contingent interest. It is clear that the testator did not dispose of his whole, interest to the inhabitants. The inhabitants might not choose to perform the condition, and so might forfeit their interest. The testator might have limited over that contingent interest specially. If he had done so, there can be no doubt but that it would have been a good limitation of his remaining interest. He made no limitation over. But nevertheless the devise did not lapse. The inhabitants became seised of a fee simple conditional, and the contingent interest not otherwise disposed of was disposed of by the residuary clause.1
*540We have been greatly assisted in this investigation by the able and learned arguments of the counsel. The result of the whole is, that the devise to the inhabitants of Stoughton was upon a condition subsequent, and the estate vested accordingly ; that they have forfeited the estate by neglecting to comply with the condition ; that the testator had an interest undisposed of, depending upon the contingency of the performance or non-performance of the condition, which passes to the residuary devisee ; and that the plaintiffs claiming under her are entitled to recover.2
The defendants must therefore be defaulted.
See 1 Stark. Ev. (5th Am. ed.) 451, et seq.; Ellis v. Paige, 1 Pick. (2d ed.) 50, n. 2
See Ingell v. Nooney, 2 Pick. (2d ed.) 366, n. 4.
Ram on Exposition of Wills, 257, el seq.; Schauber v. Jackson, 2 Wendell, 13.
See Greene v. Dennis, 6 Connect. R. 293.
But see Revised Stat. c. 62, § 3; Ballard v. Carter, ante, 114, n. 1.
In Mr. Ram’s work on Assets &c. p. 98, 99, it is said that u where a do vise is on a condition, and the condition is broken, the testator’s heir at law may enter and avoid the devise; but no one but the heir can do this. (Plowd *540412, 413; 10 Co. 41 b ; Bro. Abr. tit. Conditions, pl. 43; 1 Ventr. 200; 1 Ves. sen. 422, 423 ; 1 Atk. 424.) Where" a devise is a conditional limitation, and the condition is broken, so soon as it is broken the estate on condition ceases, and a person, who is not the testator’s heir at law, as a remainder-man, or executory devisee, may be entitled to enter and supply the vacant possession. (10 Co. 40 b; 2 Mod. 7; Newis v. Lark, Plowd. 408 ; Wellock v. Hammond, Cro. Eliz. 204.) Where there is a devise over on the conditional limitation, and the condition is broken, that devisee over is entitled to enter. But his entry is not necessary to acquire an estate; for immediately on the termination of the conditional limitation, if the limitation over is a remainder, such remainder-man has an estate in possession, (Plowd. 413; 10 Co. 40 b,) and if it is an executory devise in fee, such devisee over in fee has an estate in fee in possession. (Anon. 2 Mod. 7.)” See also Baker v. Dodge, 2 Pick. (2d ed.) 621, n. 2.
See 4 Kent’s Comm. (3d ed.) 541 to 543 ; Brigham v. Shattuck, 10 Pick 306; Clapp v. Stoughton, 10 Pick. 463.