The opinion
HARSHBARGER, Justice,
dissenting:
I cannot agree with the majority because it vests title to this property in the very people the grantors did not want to have it, persons not in fellowship and doctrinal unity with their church.
Perhaps my Brothers were overcome by the great mass of words Justice Neely put upon his paper, and lost sight of our main business. We are not here to prove how erudite we are, at the expense of reason and justice. Befogged and betwitched by extensive references to ancient texts, we have here worked an injustice simply by showing how smart we are, and delighting therein, overlooked simple, basic rules about deeds.
*276 The language in these two deeds makes it clear that they intended that the grantors wanted their property be used as a church by people in doctrinal unity with their Church of God:
It is understood and agreed that the Trustees of Gilboa Church of God, and their successors in office, shall have the benefits and privileges of all rights hereunder as long as said church maintains fellowship and doctrinal unity with the General Ministerial Assembly of the Church of God, which meets annually at Anderson, Indiana.
In the event this property falls into disuse, or if in the opinion of said General Ministerial Assembly, the local church at the above address, is no longer in fellowship and doctrinal unity with the Church of God, as represented by its General Assembly, this property shall go to, vest in, and become the property in fee simple, of the Board of Church Extension and Home Missions of the Church of God, Anderson, Indiana.
The majority called these second interests to take effect if the congregation became un-Church of God, reverter clauses. What was created, however, were determinable fees to last “as long as” the church maintained doctrinal fellowship with the General Assembly.
A fee simple determinable may be limited by either a possibility of reverter to whoever was the grantor, or by an executory interest that moves the title to a second entity. Woman’s Club of St. Albans v. James, 158 W.Va. 698 , 213 S.E.2d 469, 473 (1975). See generally 1 Simes and Smith, The Law of Future Interests (2d Ed.) §§ 221-232 and §§ 281-294 (1956). Here, the second entity apparently cannot take because of W.Va. Const, art. VI, § 47 and W.Va.Code, 35-1-1, et seq., and 31-1-79, that prevent an incorporated church from owning property in West Virginia.
Here we have deeds wherein were created estates that were fee simple determinable, and the limitations over failed because the successor grantee is prohibited to take. See First Universalist Society of North Adams v. Boland, 155 Mass. 171 , 29 N.E. 524 (1892); City of Klamath Falls v. Bell, 7 Or.App. 330 , 490 P.2d 515 (1971).
The grantors’ intent is crystal clear. Simes and Smith conclude in § 828, in Volume 2 of their treatise, supra:
[T]hat in any case where the cause of a failure is not violation of the rule against perpetuities, the court should be free to hold that the prior interest is divested if it appears that the settlor or devisor would probably have preferred it to be divested. In other words, it should be possible to infer that the happening of the event will operate as a divesting condition even though the subsequent interest which was supposed to take effect is for some reason eliminated in its inception. The actual decisions appear to be reconcilable with the proposition that, where the rule against perpetu-ities or some related rule is not involved, the prior interest will be divested on failure of the succeeding interest in any case where that would most nearly accord with the probable intent of the settlor. It would seem that this intent should be arrived at by a process of construction which includes a consideration of the fact that the succeeding interest has failed. But, if it is impossible to make any inference as to the testator’s intent, then it is believed to be more nearly in accordance with the position of the American courts to say that there is a presumption that the preceding estate is not divested. (Emphasis supplied, footnote omitted.)
The limitations here should be construed as creating possibilities of reverter, which matured, vesting title in the grantors; * or *277 they could be reformed by “equitable modification” to effectuate the grantors’ intention, putting the title in the local trustees who agreed with the doctrine of the General Assembly. Berry v. Union National Bank, 164 W.Va. 258 , 262 S.E.2d 766 (1980).
Berry dealt with this question, but in a will context. To satisfy these grantors’ intent, I would modify the invalid exec-utory limitations to the foreign corporation church, and would put title in appellees, Rose Osnes, David K. Lynch, Frank P. Goode, Larry M. McCallister, and Richard Bradley, in their capacities as the Executive Committee and Trustees of the General Assembly and Ministerial Association of the Church of God of West Virginia, and their successors in office.
I emphatically would not leave the property with those who the grantors by unmistakable expression, did not want to have it.
Many courts and authorities have followed this reasoning: McCrory School District of Woodruff County v. Brogden, 231 Ark. 664 , 333 S.W.2d 246, 250-51 (1960); Fletcher v. Ferrill, 216 Ark. 583 , 227 S.W.2d 448, 451 , 16 A.L.R.2d 1240 (1950); Brown v. Independent Baptist Church, 325 Mass. 645 , 91 N.E.2d 922, 924 (1950); Institution For Savings v. Roxbury Home for Aged Women, 244 Mass. 583 , 139 N.E. 301 , 303 (1923); First Universalist Society of North Adams v. Boland, supra; City of Klamath Falls v. Bell, supra; In Matter of Estate of Bruner, 400 Pa. 629 , 162 A.2d 626, 633 (1960); Yarbrough v. Yarbrough, 151 Tenn. 221 , 269 S.W. 36 , 39 *277 (1925); County School Board of Scott County v. Dowell, 190 Va. 676 , 58 S.E.2d 38, 44 (1950). See Restatement, Property (2d) § 228, comment b.; Annot., Application of Rule Against Perpetuities to Limitation Over On Discontinuance of Use for Which Premises are Given or Granted, or the Commencement of a Prohibited Use, 45 A.L.R.2d 1154 , 1163; 2 Simes and Smith, supra at § 823-828.