This case involves the construction of a deed executed in 1923, by which J. W. Fletcher conveyed to a Masonic Lodge certain business property in the city of Batesville. In the deed Fletcher first reserved a life estate in himself. He then provided that when the property came into the possession of the Lodge it should be used exclusively for the benefit of a specified orphans home and school, “and when it ceases to be so used, or when said home and school shall be moved from Batesville, Arkansas, said property shall revert to the heirs of the said J. W. Fletcher.” The parties concede that this deed created a determinable fee in the Lodge. See Taylor v. School Dist. No. 45 of Searcy County, 214 Ark. 434, 216 S. W. 2d 789.
Fletcher died in 1930, leaving a will that named his widow, the principal appellant, as his residuary devisee. The Lodge took possession of the property upon Fletcher’s death and used the rents for the benefit of the orphanage until 1948. In that year the orphanage ceased to exist, and the Lodge at once disclaimed any further interest in the property. The question now is whether the title then passed to the appellant as residuary devisee or to the forty-eight appellees, who are Fletcher’s heirs under the statutes of descent and distribution. The chancellor decided in favor of the heirs, plaintiffs below.
The principal question is whether the language of the deed, “said propertjr shall revert to the heirs of the said J. W. Fletcher,” created (a) a possibility of reverter in Fletcher himself or (b) an executory limitation to Fletcher’s heirs, which would become a possessory interest upon termination of the determinable fee. We must first decide, however, whether a possibility of reverter is an interest that can be devised by will in Arkansas; for, if it is not, then the appellant’s claim under the will obviously cannot be sustained. The early English cases held that a possibility of this kind cannot pass by will, but the opposite result has been reached in the great majority of American jurisdictions. Rest., Property, § 164, Comment c, and § 165, Comments a and /. This holding is practically uniform in states having a statute like ours, which ’empowers the testator to devise real property “and all interest therein.” Ark. Stats. (1947), § 60-102. Unquestionably the American rule carries out the grantor’s intention more often than does the English rule. That is, if a landowner should convey property to a school, to be held as long as used for school purposes, he would undoubtedly assume that he still had an interest in the land and would be dismayed to learn that he could not leave that interest to any one he pleased — that it must inevitably go to Ms heirs at law, regardless of his own wishes. Yet that would be his unhappy position under the English doctrine. We have no hesitancy in following the American cases and holding that the broad language of our statute permits the testator to devise a possibility of reverter.
Returning to the principal question, we think the deed created a possibility of reverter in Fletcher rather than an executory interest in his heirs. This inquiry really narrows down to whether the word “heirs” is here a word of limitation or one of purchase. If it is a word of purchase, then the appellees took by virtue of the deed itself and not by inheritance from Fletcher. But if the word is one of limitation the title passed first to Fletcher’s estate and thence to the appellant as residuary devisee.
In holding that the word is one of limitation rather than of purchase we stress the fact that Fletcher reserved a life estate in himself. In those circumstances there was no occasion for him to use the customary phrase — “the property shall revert to the grantor and Ms heirs” (in which the word is clearly one of limitation) — for it was unnecessary for Mm to provide for a possible reverter during his own lifetime. Thus there is a marked similarity between a reversion to the grantor’s heirs in a deed that reserves a life estate and a reversion to the grantor and his heirs in a deed intended to transfer immediate possession.
Our holding in Wilson v. Pharris, 203 Ark. 614, 158 S. W. 2d 274, tends to support our present conclusion. There the grantor, after reserving a life estate in herself, conveyed to her daughter a life estate upon condition subsequent. The deed provided that upon the happening of the condition the property should revert “to the said grantor’s heirs.” We held that the grantor still owned the fee and could convey it during her life tenancy. This was of course a recognition that the right of re-entry was in the grantor at least during her lifetime.
Even if we should sustain the appellees’ contention that in the case at bar the word “heirs” was used in the deed as a word of purchase, we should still have to decide the case in the appellant’s favor. Under that construction the deed would vest a determinable fee in the Lodge, and upon termination of that estate the title would pass directly to the appellees, not by inheritance from Fletcher but by virtue of the executory limitation in the deed. The appellees would thus have had an executory interest in the property throughout the existence of the determinable fee. It is well settled, however, that such an executory interest is not a vested estate and therefore must vest within the period allowed by the rule against perpetuities. Gray, The Rule Against Perpetuities, 4th Ed., § 41; Simes, Future Interests, § 768; Rest., Property, § 44, Comment o, and § 229, Illustration 8. On the other hand, it is equally well settled that the retention by the grantor of a possibility of reverter does not offend the rule against perpetuities, even though the reverter may not take place for an indefinite period in the future. Gray, § 41; Simes, § 507; Rest., § 372.
The leading case on this point is quite similar to the present case, if Fletcher’s deed be construed a's containing an executory limitation to his heirs. In First Universalist Society of North Adams v. Boland, 155 Mass. 171, 29 N. E. 524, 15 L. R. A. 231, the deed provided that the grantee should hold the land as long as it should be devoted to tlie doctrines of tire Christian religion, and when it was diverted from that nse the title should vestdn certain named persons. The court held that the limitation over was void for remoteness, and therefore a possibility of reverter remained in the grantor. We are not aware of any decision to the contrary. In the present case it is evident that the Lodge’s determinable fee might have continued for a period far in excess of that allowed by the rule against perpetuities, and hence an executory limitation to Fletcher’s heirs would necessarily be void. This leaves the possibility of reverter in the grantor, as an interest not conveyed by the deed. Thus it is clear that the appellant must prevail under either construction of this instrument.
The decree is reversed, and, as the title to real property is involved, the cause is remanded for the entry of a decree in accordance with this opinion.
Holt and McFaddin, JJ., concur.