(concurring). The majority opinion holds: (1) that the wording in the deed made by Mr. Fletcher was insufficient to show his intent that the reversion should pass to his heirs, rather than to his estate; and (2) that even if the word "heirs” was a word of purchase, instead of limitation,, still the appellees would lose under the application of the rule against perpetuities. I dissent from the first holding made by the majority, but agree with the second; hence this concurring opinion.
I believe that it was the purpose and intent of J. W. Fletcher, when he executed the deed on December 5, 1923, to create at that time what may be called ‘ ‘ three estates ’ ’: (a) a life estate in himself; (b) a remainder in the Grand Lodge, in trust for the Masonic Orphans Home; and (c) a reversion, on the failure of the trust, to the heirs at law of J. W. Fletcher. Concerning this (e) estate, I believe that the words in the deed, "shall revert to the heirs of said J. W. Fletcher” mean what they said. In short, I believe that the word "heirs” was used as a word of purchase, rather than of limitation. I am impellecl to this conclusion by the wording of the deed which, omitting caption, description, signature and acknowledgment, is as follows:
‘ ‘ In consideration of the benefits which have accrued to the community of Batesville, Arkansas, on account of and by reason of the Masonic Orphans Home and School of Batesville, Arkansas, and of Most Worshipful Grand Lodge of Arkansas Free and Accepted Masons, and for the pleasure and satisfaction to me and for the benefit of the present and future occupants of Batesville, Arkansas, Masonic Orphans Home and School, and to carry out the ivishes of Mrs. Fenton G. Fletcher, my deceased wife, I convey and ivarrant unto the Most Worshipful Grand Lodge of Arkansas Free and Accepted Masons, the following described property, to-wit: ’ ’ ' j
(Here is description of property)
“That I, J. W. Fletcher, the grantor herein, does and shall retain during his natural life the exclusive right to and possession of said property and the entire control and management thereof and shall have and retain all the rents and profits from said property during said time as fully and completely as if he were absolute owner thereof, that said property when it comes into the possession of said Most Worshipful "Grand Lodge of Arkansas, Free and Accepted Masons, shall be used solely and exclusively for the benefit of said Masonic Orphans Home and School of Batesville, Arkansas, 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 Grantee herein when it comes into possession of said property shall have the right to rent or lease it for any legitimate purpose, but all the income from said rent or lease must accrue to and be used for the benefit of said Masonic Orphans Home and School of Batesville, Arkansas.
“WITNESS my signature this 5th day of December, 1923.”
(Italics are our own.)
J. W. Fletcher said he was seeking to “carry out the wishes of Mrs. Fenton G-. Fletcher, my deceased wife.” The deceased wife certainly could not have intended that the reversion in the property should be willed by J. W. Fletcher to a subsequent wife because the first wife had no assurance that there would ever be a second wife. I think the wishes of the deceased wife — -as stated in the consideration clause — carry over to the reversion clause: so I believe that it was J. W. Fletcher’s intention to let the property revert to- whomsoever his heirs might be at the time of the reversion; and that this deed is one of those infrequent instruments in which courts— to correctly effectuate the grantor’s intentions- — hold that the word “heirs” is a word of purchase, rather than of limitation.
But, having reached that conclusion, I am met with the rule against perpetuities which renders the reversion void. Such is the second holding made in the majority opinion; and with tha*t holding I agree.
In 1923 when the deed was executed, J. W. Fletcher in effect attempted to convey to his heirs an estate in fee on condition: i. e., he conveyed the fee to whomsoever might be his heirs at law when the condition (i. e., the termination of the Masonic Orphans Home) became an actuality. That actuality might, or might not have happened “within the life or lives in being and twenty-one years and the period of gestation” from the date of the deed because no one could tell when, if ever, the Masonic Orphans Home would cease to exist. So the said heirs mentioned in the deed of December 5 might not receive the property within the period limited by the rule against perpetuities. Therefore, the conveyance to the “heirs” was and is void as offending against the perpetuities rule.
The point is made clear in 41 Am. Jur. 75, in § 31 of the Topic “Perpetuities and Restraints on Alienation.” In that topic it is first pointed out:
“A possibility of reverter which remains in a grantor or his successor in interest, or in a testator’s heirs or devisees, where there has been created a fee simple determinable, is not subject to the rule against perpetuities. Thus, a conveyance of land to a school district upon condition that the land be used only for school purposes, the land to revert to the grantor if the district ceases to use the land for school purposes or uses it for any other purpose, does not violate the rule against perpetuities, as the possibility of reverter vests in the grantor, which he may convey and which descends to his heirs or which he may transmit by will. ’ ’
That foregoing quotation states the law as applied by this Court in such cases as: Coffelt v. Decatur School District, 212 Ark. 743, 208 S. W. 2d 1, and Williams v. Kirby School District, 207 Ark. 458, 181 S. W. 2d 488.
Then the Topic in 41 Am. Jur. 76 continues in this language:
“But if the instrument creating the determinable or conditional fee provides for a limitation over to a third person following the expiration of a determinable fee or the cutting off of a defeasible fee, the rule against perpetuities applies for the limitation over, sometimes called an executory limitation or conditional limitation, arises by virtue of the grant or devise and goes to a third person rather than merely remaining in the creator of the estate or his successors in interest. For example, it has been held that a devise of a house and land to deacons of a church and their successors forever, on condition that the' minister or eldest minister of said church shall constantly reside in and dwell in said house during such time as he is minister of said church, and in case the same is not improved for that use only, then the bequest to be void and of no force, and said house and land then to revert to the nephew of testatrix, is a conditional limitation to the nephew, and not a devise on condition, and as such is void for being too remote.”
The last quotation states the law applicable to the case at bar because, here, the reversion was to the heirs of J. W. Fletcher as words of purchase, and the said heirs were “third persons,” the same as the nephew, within the foregoing quotation; and therefore the reversion was void as offending against the perpetuities rule.
For the reasons herein stated I concur with the result reached by the majority; and I am authorized to state that Mr. Justice Holt joins me in this concurrence.