## Facts

- A buyer paid a deposit under a land-sale agreement requiring return of the deposit if the seller’s title was defective.
- Title depended on a testamentary devise that, after the testator’s children died, gave one-third of the estate to the testator’s granddaughter “Sarah A. Whiton, and her heirs on her father’s side,” with the remainder to other grandchildren.
- The grandchildren, including Sarah, executed a deed to the buyer under the contract.
- The buyer refused to accept the deed, claiming the phrase “and her heirs on her father’s side” limited Sarah’s estate to something less than a fee simple absolute, making title defective.
- The buyer sued to recover the deposit; the trial court entered judgment for the seller on agreed facts, and the buyer appealed.

## Issues

1. Whether a devise to a named beneficiary “and her heirs on her father’s side” creates a restricted or “qualified” fee that prevents conveyance of a fee simple absolute.
2. Whether the quoted phrase should be treated as words of purchase (creating a new class of takers) or words of limitation (describing the estate taken by the named devisee).
3. Whether the alleged defect in Sarah’s estate rendered the seller’s title defective under the purchase agreement.

## Decision

- The court affirmed judgment for the seller.
- The devise passed legal title to Sarah under the will.
- The phrase “and her heirs on her father’s side” was construed as words of limitation, not words of purchase.
- The will was construed to give Sarah a fee simple absolute that she could convey.
- Because the deed could convey good fee simple title, the buyer was not entitled to recover the deposit.

## Legal Principles

- Language referring to a devisee’s “heirs” ordinarily functions as words of limitation defining the estate of the named taker, rather than naming additional takers.
- A testator cannot create a new form of inheritance or estate unknown to the recognized system of estates by attempting to dictate a novel line of descent.
- When testamentary language attempts to impose an impermissible hereditary limitation, courts construe the devise within established estate categories, commonly resulting in a fee simple absolute in the named devisee.
- A purchaser cannot treat title as defective when the devisee holds and can convey a fee simple absolute.

## Conclusion

The court held that the devise to Sarah “and her heirs on her father’s side” did not create a restricted inheritable estate; it conveyed a fee simple absolute, making the seller’s title sufficient and barring recovery of the buyer’s deposit.


Johnson v. Whiton, 159 Mass. 424, 34 N.E. 542 (1893)