The Supreme Court of Virginia recently upheld the validity of a whites-only provision in an educational trust. The decision in Hermitage Methodist Homes of Virginia, Inc. v. Dominion Trust Co., would be noteworthy for that reason alone. It is important for three other reasons, however. First, this was not an ordinary property dispute; it arose directly from Brown v. Board of Education. The restriction at issue applied to a segregation academy in Prince Edward County, the most recalcitrant of the defendants in Brown. The academy was established to provide private education for whites when the county closed its public schools rather than comply with an order to desegregate. Remarkably, the segregation academy was the party challenging the racial restriction.

Second, the result turned explicitly upon the formal distinction between limitations and conditions subsequent, an especially arcane aspect of the law of defeasible fees. The logic of the opinion suggested that racial restrictions embodied in limitations might be immune from constitutional attack, whereas identical restrictions embodied in conditions subsequent would be infirm. It is troubling that this essentially semantic distinction, which has long been criticized by commentators on other grounds, could be used to afford a constitutional safe harbor for perpetrators of racial discrimination. Third, the case illustrates the sometimes mischievous allure of constitutional argument when less glamorous, but more service- able, principles from traditional property and trust law would have disposed of the controversy in a more satisfactory fashion. Although these analytical deficiencies probably did not affect the outcome in this instance, at least one major recent civil rights case, Patterson v. McLean Credit Union, might have been lost because the parties paid insufficient attention to common law legal theory The lessons of Hermitage Methodist Homes, then, could have broader application.

The discussion proceeds as follows. Part I gives an overview of the law of defeasible fees and the limitation-condition distinction that loomed so large in the Hermitage Methodist Homes case. Part II critically analyzes that case, suggesting an alternative approach based upon a unified law of defeasible fees that would have led to the same outcome without the troubling implications contained m the state supreme court's opinion. Part III explores the constitutional implications of the elusive distinction between limitations and conditions subsequent and suggests some appropriate features for a unified law of defeasible fees. Part IV examines alternative arguments based upon traditional property and trust law principles that were neglected by the parties and the court in Hermitage Methodist Homes. Finally, Part V concludes that this case, despite (or perhaps because of) its atypical factual setting, can promote clearer understanding of the problems of defeasible-fee law.



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William and Mary Law Review

Publication Information

34 William and Mary Law Review 769 (1993)


COinS Jonathan L. Entin Faculty Bio