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one of the well admitted peculiarities of the executory devise lies in the circumstance that it can take effect after an absolute fee simple, there seems to be some confusion in thought in saying that the effect of the executory devise is to reduce the quantum of the fee.1 An executory devise operates to transfer or defeat the fee, not to reduce or qualify it.

Determinable Fee

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27. A determinable fee is where a fee simple estate is limited to the grantee and his heirs until the happening of some future event which may never happen at all. It is clear that the time of the termination of the estate must be uncertain. A limitation to a grantee and his heirs until the happening of an event which is sure to happen, does not create a fee simple at all. A learned writer divides determinable fees into two classes: (1) where the fee is to last until a specified contingency shall happen, the contingency being such that it may never happen; (2) where the estate is to last so long as an existing state of things shall endure, the state of affairs being such that it may endure forever. Determinable fees may be created in Pennsylvania. A list of the determinable fees which have arisen in Pennsylvania is given in the note. Mr. Gray says that determinable fees are invalid

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1 See Gray, Rule Perp., 2 ed. (1906), $32.

2 Challis, Real Prop., 2 ed., Chap. 17, p. 224.

3 The language, therefore, of the reporter in the first paragraph of the syllabus in Methodist Church v. Public Grounds Co., 103 Pa. 603 (1883), in which he speaks of a determinate fee is clearly incorrect and unsupported by any respectable authority. For a proper use of the word, see Pollock & Maitland, History of English Law, Vol. 2, 1 and 2 ed., p. 111. The word determinate means fixed, certain.

4 Challis, Real Prop., 2 ed. (1892), p. 225.

5 Conveyance of a certain mill dam and pond of water &c., "to and for the use and service of a certain mill with the land

thereto belonging, and for no other use whatsoever:" Scheetz v. Fitzwater, 5 Pa. 126 (1847). Grant in fee for "the use and purpose of a certain railroad and no other use whatsoever:" Penna. R. R. Co. v. Parke, 42 Pa. 31 (1862). "For the use of a certain church and no longer and then to revert back :" Henderson v. Hunter, 59 Pa. 335 (1868). See Gumbert's App., 110 Pa. 496 (1885) and Saxton v. Mitchell, 78 Pa. 479 (1875). See also remarks of Rogers, J., in Union Canal Co. v. Young, 1 Whart., 410 at 427, 428, (1836), and Kerlin v. Campbell, 15 Pa. 500 at 506 (1851). Grant to a school-board provided that "in case the school law now in existence should be abolished and the public school should cease to exist," the land should revert: Courtney v. Keller, 4 Penny. 38 (1884). Grant to

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in England since the passage of the Statute of Quia Emptores. Mr. Challis reaches a contrary conclusion. The tenant of the determinable fee may alienate or will his estate, and it will descend to his heirs, subject in all these cases to be determined by the qualifications annexed to the grant."

Confusion in Terminology as to Modified Fees in Pennsylvania

28. While the distinction between these different kinds of fees is clear and easily understood, the language of the judges in Pennsylvania has been loose and inaccurate.10 It is to be observed, however, that the language of the older text writers

county commissioners of a tract of land adjoining the county jail "for an open yard," so that the same "be and remain forever hereafter unbuilt on, in order to prevent any prisoner or prisoners making their escape over the said prison wall by reason or means of any building to be erected contiguous to the same wall:" Slegel v. Lauer, 148 Pa. 236 (1892). A devise by a testator to his wife "and her heirs and assigns forever so long as she remains my widow," creates a determinable fee, erroneously called a conditional estate: Scott v. Murray, 218 Pa. 186 (1907): case arose on a question over the title derived from the widow who died without having remarried. This case does not sustain the validity of the clause, upon which latter point there is probably some doubt. Grant to a railroad company "so long as" the grantee "shall use and occupy the same as a passenger depot and offices:" Young v. Oviatt, 35 Super. Ct. 603 (1908). The case put by Mr. Challis, Real Prop., 2 ed. (1892), p. 230, "till the marriage of a person shall take place," is probably used in practice in Pennsylvania, but has not come before the court.

6 Gray, Rule Perp., 2 ed. (1906), §32. 7 Challis, Real Prop., 2 ed. (1892), Appendix IV, p. 398

8 For list of English determinable fees, see Challis, Real Prop., 2 ed. (1892), p. 228, et seq. See also Mr. Preston's list quoted in Mitchell, Real Est. & Conv. in Pa. (1890), at p. 100.

"The question as to how far courtesy and dower are incident to determinable fees, does not seem to have arisen in Pennsylvania. For a discussion of the question, see Gray, Rule Perp., 2 ed. (1906), §14, n. 3.

10 Determinable fee called a qualified fee by Krause, P. J., in the court below, in Scheetz v. Fitzwater, 5 Pa. 126 at 128 (1847), and a base fee by the reporter in the second paragraph of the syllabus. Determinable fee called a base or qualified fee, it could not be either of these, by Endlich, J., in the court below, in Slegel v. Lauer, 148 Pa. 236 at 241 (1892). See also language of Mercur, J., in Methodist Church v. Public Grounds Co., 103 Pa. 608 at 615 (1883); Rogers J., in Union Canal Co. v. Young, 1 Whart. 410 at 427-428 (1836); Kerlin v. Campbell, 15 Pa. 500, per curiam opinion at 506 (1851). Determinable fee called a conditional estate by Bouton, P. J., in the court below, in Young v. Oviatt, 35 Super. Ct. 603 at 605 (1908), and a base fee by the reporter in the syllabus of the same case.

on the subject is just as confusing." The Supreme Court, if the case should come before it again, can do no better than follow the accurate distinctions pointed out by Mr. Challis.

Title Acquired in Eminent Domain

29. The title acquired by a railroad company under condemnation proceedings in eminent domain, was called a base or conditional fee by Mitchell, J., in Railroad Co. v. Paper Mills Co.1 It is true that the land does revert to the former owner when the use ceases. This reversion appears to exist under the statutes relating to eminent domain, and does not arise out of a grant.3 The application of the technical term of the common law to the case, seems to be somewhat confusing. If the estate is to have any such name, the phrase determinable fee is the only one which seems possible. The application of the term base or conditional fee seems very questionable.

Summary as to Modified Fees

30. It will thus appear that an attempt was made at the early common law to tie up property by creating inalienable conditional fees. This device was rendered useless by the decision of the judges.* Recourse was then had to the legislature, and the conditional fee was turned into an estate tail. The evil results of this estate were soon removed by the decisions of the courts, and the estate itself was abolished in Pennsylvania in 1855.5 sary evolution of the

The base fee seems

The base fee seems to be a necesestate tail, and to fall with it."

11 The confusion in the language of Kent and Blackstone is pointed out by Mr. J. M. Zane in an article in 17 Harv. Law Rev., 297 at 300 (1904), and the confusing language of Lord Coke is pointed out in Challis, Real Prop., 2 ed. (1892), pp. 52, 53.

1149 Pa. 18 at 20 (1892), quoted by Paxson, C. J., in Rwy. Co. v. Peet, 152 Pa. 488 at 492 (1893), and McCarthy, J., in Speese v. Railroad Co., 23 Pa. C. C. 17 at 19 (1899). The same remark has been applied to the title acquired by a municipal corporation under emi

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nent domain; see Sterrett, C. J., in Reading v. Davis, 153 Pa. 360 at 365 (1893); Green, J., in Phila. v. Ward, 174 Pa. 45 at 49 (1896).

2 See Lance's App., 55 Pa. 16 (1867). 3 A determinable fee may exist where the owner of the property makes a grant to the railroad company, for a case of which see Railroad Co. v. Parke, 42 Pa. 31 (1862); Young v. Oviatt, 35 Super. Ct. 603 (1908).

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qualified fee has probably never existed in Pennsylvania, and furnishes a fit topic only for academic discussion. The determinable fee still remains in Pennsylvania and is freely alienable.R The only objection to the determinable fee lies in the circumstance that the possibility of reverter may take effect at a period beyond that prescribed by the rule against perpetuities."

7 See $26, ante.

8 See §27, ante.

As to this point see $368, post.

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Attributes of a contingent remainder in Pennsylvania.
Contingent remainders in Pennsylvania.

$ 52

§ 53

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