Brownv.Indep. Baptist Church of Woburn

Whether the specific devise to the Independent Baptist Church of Woburn created a determinable fee?¹⁰

A determinable fee is created when a will devises land to a grantee so long as a stated condition continues.¹¹ The estate automatically expires upon occurrence of the event because the fee might last forever yet is not absolute.¹²

Yes. Sarah Converse died seised of the land.¹³ She specifically devised it to the Independent Baptist Church of Woburn to be holden and enjoyed by them so long as they shall maintain and promulgate their present religious belief and faith and shall continue a Church.¹⁴ The estate would pass over if the church dissolved or changed its sentiments.¹⁵ The church ceased to continue a church on October 19, 1939.¹⁶

This language created a fee that could endure indefinitely if the condition held but terminated automatically on the stated event.¹⁷

The specific devise to the Independent Baptist Church of Woburn created a determinable fee.¹⁸

Whether the executory devise over to the legatees named in Sarah Converse's will was void for remoteness?¹⁹

An executory devise over following a determinable fee is void for remoteness under the rule against perpetuities.²⁰ This occurs when the fee might not terminate until long after lives in being plus twenty-one years, leaving no clear title to the entire estate for an indefinite period.²¹

Yes. After the specific devise, the will contained an executory devise over to the legatees hereinafter named if the church dissolved or its sentiments changed.²² The determinable fee might not end until long after any life or lives in being and twenty-one years and in theory might never end.²³ The single justice ruled the executory devise void, and the full court agreed.²⁴

The executory devise over to the legatees named in Sarah Converse's will was void for remoteness.²⁵

Whether the possibility of reverter passed under the residuary clause to the persons named as legatees?²⁶

A possibility of reverter that remains after a determinable fee is devisable.²⁷ It passes under a residuary clause to the designated legatees because it is at least as readily devisable as a right of entry for condition broken.²⁸

Yes. When the executory devise failed, the possibility of reverter remained after the determinable fee.²⁹ The residuary clause gave the rest and residue of the estate to the legatees above named, saving and except the church, to take effect after the husband's death.³⁰ The possibility of reverter therefore passed under that clause to the same persons named as legatees.³¹

The possibility of reverter passed under the residuary clause to the persons named as legatees.³²

Whether the residuary clause was void for remoteness?³³

The rule against perpetuities does not apply to reversionary interests such as possibilities of reverter.³⁴ They are remnants of the testatrix's existing estate rather than newly created future interests that might vest remotely.³⁵

No. The single justice ruled the residuary clause void for remoteness on the same ground applied to the executory devise.³⁶ The full court disagreed because the rule against perpetuities does not apply to reversionary interests of this type.³⁷ The residuary devise was in terms and purpose adapted to carry any interest that might otherwise remain in the testatrix.³⁸

The residuary clause was not void for remoteness.³⁹

Whether the words saving and excepting the Independent Baptist Church from the residuary clause excluded any rights in the land from passing under that clause?⁴⁰

Words in a residuary clause saving and excepting a previously named beneficiary are construed only to exclude that beneficiary from the list of legatees taking the residue.⁴¹ This renders the will consistent and does not exclude possible rights in land from passing under the clause.⁴²

No. The residuary clause stated saving and except therefrom the Independent Baptist Church.⁴³ These words were intended merely to render the will consistent by excluding the church which had also been above named from the list of legatees who were to take the residue.⁴⁴ They did not exclude any possible rights in the land from the operation of the residuary clause.⁴⁵

The words saving and excepting the Independent Baptist Church from the residuary clause did not exclude any rights in the land from passing under that clause.⁴⁶