34 N.E. 542 (Mass. 1893)
Johnson entered into an agreement to purchase land and paid a deposit toward the purchase price.1 The land had been devised under the will of Royal Whiton, specifically passing to his five grandchildren pursuant to the seventh clause of that will.2 Subsequently, the five grandchildren executed a deed conveying the property and tendered it to Johnson as the buyer.3
Johnson refused to accept the deed, asserting that Sarah A. Whiton, one of the grandchildren, lacked the ability to convey a fee simple absolute in the land due to the terms of the will.4 As a result, Johnson commenced this action to recover the deposit paid under the purchase agreement.5
The seventh clause of Royal Whiton's will contained the following language regarding the disposition to his granddaughter: “After the decease of all my children, I give, devise, and bequeath to my granddaughter, Sarah A. Whiton, and her heirs on her father’s side, one third part of all my estate, both real and personal, and to my other grandchildren and their heirs respectively the remainder, to be divided in equal parts between them.”6 This dispute over the quality of title offered by the tendered deed was presented to the Supreme Judicial Court of Massachusetts, where Holmes, J., considered the matter and issued the court's opinion.7
Whether the words "and her heirs on her father's side" in the seventh clause of Royal Whiton's will are words of limitation rather than words of purchase?8
The words “and her heirs on her father’s side” are words of limitation, and not words of purchase.9
Yes. The court examined the seventh clause of Royal Whiton's will devising one third of the estate to Sarah A. Whiton and her heirs on her father's side.10 It concluded that the phrase functions as words of limitation defining the estate rather than words of purchase creating a separate interest in the heirs.11
The words are words of limitation rather than words of purchase.12
Whether the effect of those words was to give Sarah A. Whiton merely a qualified fee?13
A man cannot create a new kind of inheritance, and if the words do not effect the purpose intended they are to be rejected, leaving the estate a fee simple; it is contrary to the policy of the law of Massachusetts to deny the power of the owner to convey an unqualified fee.14
No. The Massachusetts statute of descent looks only to the person who died seised, allowing inherited property to pass from one line to the other, so the English analogy for limited descent fails and the qualifying words are rejected.15 The tendered deed from the grandchildren therefore conveyed a fee simple absolute that Sarah A. Whiton had power to convey.16
The words did not prevent Sarah A. Whiton from conveying a fee simple absolute.17