On the 21st of September, 1880, in consideration of one dollar, W. A. Harris conveyed the land in controversy to “D. E. Young, Geo. A. Harris and John E. Harris, trustees of the defendant church, and to their successors in office, upon which to build a church for the worship of Almighty God,” with full warranty against the right and claim of all other persons whatsoever. But he provided that if said church “discontinue the occupancy of said lot in manner as aforesaid, then this deed shall be null and void, and the *9said lot or parcel of ground shall revert to the said W. A. Harris and bis beirs and assigns forever.”
Tbe defendants erected a cburcb on said lot soon thereafter, and continued to occupy and use the same as a place of worship, until December, 1900, at which time their church, having increased until the building could not afford suitable accommodation for the congregation, the defendants decided to build a new church; and for the reason that the location had become undesirable for a church, and for the reason that the defendant thought the lot would be more valuable to sell it with the building on it than it would be to tear down the building, which they would have to do to build on the same lot, they purchased another lot near by and built a church on that lot.
In December, 1882, the said W. A. Harris died, leaving a last will and testament, and one son, W. C. Harris, and one daughter, Pattie Young, his only children and heirs-at-law. By his said will he devised and bequeathed his property to his two children, in which he used the following language: To Pattie Young, “one-half of all my real and personal estate of every kind and description not hereinbefore disposed of.”
Walter C. Harris is still living, but Pattie died in October, 1.S92, without issue, leaving a last will and testament, in which, after making numerous other dispositions of her property, she willed in Item 19 as follows: “It is my will and desire that all the rest and residue of my property, real, personal and mixed, of which I may die seized and possessed, shall be sold and collected by my executor hereinafter named upon such terms as to time as he may deem best.” She then named the defendant as her executor, and he claims one-half of the property in controversy, under this 19th item of Pattie Young’s will, and the "plaintiff, for the purpose of removing this cloud upon its title, brought this action.
It will be observed that the deed from W. A. Harris to the *10plaintiff is an absolute fee, which may have continued forever. But it contains a condition by which this absolute estate may be defeated, which makes it an estate in fee upon condition, or, as it is called' in the old books, a base or qualified fee, and is sometimes called a conditional limitation — a condition by which the estate may be defeated, or is limited.
It is admitted that the condition had been broken by the plaintiff, and that W. A. Harris, if living, might enter and revest himself of the estate, ’and, as he is dead, that his heirs might do so. But it is contended that no one else can do so, and that at the time of the breach, both W. A. Harris (the grantor) and Pattie Young being dead, that Walter C. Harris, being the only heir of said W. A. .Harris land of Pattin. Young), is the only one who could enter. Grray’s Rules against Perpetuities, page 6, sec. 12 (2). And that since the breach of the condition and before the commencement of this action, the plaintiff has received a quit-claim deed of conveyance from said Walter C. Harris, and is now the absolute owner of said property in fee simple; while the defendant contends that although the breach did not take place until after the death of both W. A. Harris and Pattie Young, the said W. A. had a right or interest in said property, which he could will, and did will, to Pattie, and that the will of W. A. gave her an interest which she could and did will to the defendant, and that the deed from Walter 0. to the plaintiff only conveys a one undivided half interest therein, and that this defendant is entitled to the other half thereof.
Until the breach of the condition, neither said W. A. Harris nor said Pattie Young had any interest or estate in this property. The absolute estate was in the plaintiff, and, therefore, could not be in anyone else. Neither W.A. nor Pattie ever had an estate, an interest, nor even an expectancy, in this property, as an heir may have in the estate of his ancestor — as by reason of natural causes the ancestor must die, and the law declares *11bis heirs, to whom his estate will descend.. But in this case there was nothing to limit the estate of the plaintiff, and, until the breach, the grantee had the same rights as if it was a fee simple. 2 Oliitty Bl., star pages 109, 110, note 15, and pages 155-6-7; Gray’s Rules Against Perpetuities, supra. And the grantor having nothing, he could convey nothing by his will, and Pattie had nothing to convey by her will. Suppose that A is the next of kin and heir-at-law of B, and if A should die, his children would be the next of kin and heirs-at-law of B. A dies in the lifetime of B, leaving a last will and testament, in which he willed to 0 — Item 19 — as follows: “It is my will and desire that all the rest and residue of my property, real, personal and mixed, of which I may die seized and possessed, shall be sold and collected by my executor hereinafter named,” and named Y as his executor. After the death of A, B dies intestate, would it be contended that the estate, coming to A’s children from B’s estate, passed to C by A’s will ? It most certainly would not, for the reason that A had no interest in B’s estate at the time of his death; and for the same reason the will of W. A. Harris passed no title, estate or interest to Pattie in the property in controversy, because he had no interest in it to convey, and Pattie’s will passed nothing to the defendant.
It seems that it is hardly denied by the defendant but what at the common law the estate in the land in controversy would have reverted to the heir-at-law (Walter C. Harris) upon condition broken. But he contends that this is changed by the Act of 1844, chap. 2141, which makes the will speak from the death of the testator, and by the provisions of chapter 2140 of The Code. Other clauses are relied upon by the defendant to sustain his contention, but the following paragraph seems to be most nearly in point and controls the others, if any of them bear upon the question, and that is as follows: “And also to all rights of entry for conditions broken, and other *12rights of entry; and, also, to such of the same estate, interest and rights respectively, and other real and personal estate as the testator may be entitled to at the time of his death.” This evidently means rights of entry for conditions broken in the lifetime of the testator, and where he had the right of entry while living. This seems to us manifestly the proper construction of this statute — such rights as he has “at the time of his death.'” And, besides, this being manifestly the proper construction of the statute, it puts the statute in harmony with the plainest principles of law governing the rights of property, as it can not be supposed that the Legislature intended to authorize a testator to will what he did not have.
Our opinion, then, is, that at the death of W. A. Harris he had no interest in the property in controversy, and no interest therein passed to Pattie Young by his will; and, of course, if W. A. Harris had no interest, none passed to her under the will of W. A. Harris, nor could she inherit Avhat her father did not have, and she had nothing to will to the defendant Young, and he has no interest in the same.
Our opinion further is, that upon the breach of the condition in 1900, the right of entry and the estate in the land iu controversy reverted to Walter 0. Harris, the only heir-at-law of the grantee, W. A. Harris, at the time of the breach; and that, as plaintiff has acquired the title of W. 0. Harris in and to said, land, it is the absolute owner thereof in fee simple.
The judgment below is
MoNtgomjeey, J., did not sit on the hearing of this appeal.