159 Mass. 424 | Mass. | 1893
This is an action to recover a deposit paid under an agreement to purchase land. The land in question passed under the seventh clause of the will of Royal Whiton to his five grandchildren, and a deed executed by them was tendered to the plaintiff, but was refused on the ground that one of the grandchildren, Sarah A. Whiton, could not convey a fee simple absolute, and this action is brought to try the question. The clause of the will referred to is as follows: “ 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.”
We see no room for doubt that the legal title passed by the foregoing clause. We think it equally plain that the words “ and her heirs on her father’s side ” are words of limitation, and not words of purchase. The only serious question is whether the effect of them was to give Sarah A. Whiton merely a qualified fee, and whether by reason of the qualification she is unable to convey a fee simple. We do not think that it would be profitable to follow the discussions to be found in 1 Prest. Est. 449 et seq., and Challis, Real Prop. 215 et seq. By the old English law, to take land by descent a man must be of the blood of the first purchaser; Co. Lit. 12a; 2 Bl. Com. 220; and by the St. 3 & 4 Will. IV. c. 106, § 2, descent is traced from the purchaser. For instance, if the land had been acquired in fee simple by Sarah A. Whiton’s father, it could have descended from her only to her heirs on her father’s side. The English rule means that inherited property does not pass from one line to the other, and is like the rule of the French customary law, Propres ne remontent pas. P. Viollet, Hist, du Droit Civil Fran9. (2d ed.) 845. In this state of the law of descent it was no great stretch to allow a limitation in the first instance to Sarah of a fee
What we have to consider, however, is not the question of descent, but that of alienability; and that question brings a further consideration into view. It would be most unfortunate and unexpected if it should be discovered at this late day that it was possible to impose such -a qualification upon a fee, and to put it out of the power of the owners to give a clear title for generations. In the more familiar case of an estate tail, the Legislature has acted and the statute has been carried to the farthest verge by construction. Pub. Sts. c. 120, § 15. Coombs v. Anderson, 138 Mass. 376. It is not too much to say that it would be plainly contrary to the policy of the law of Massachusetts to deny the power of Sarah A. Whiton to convey an unqualified fee.
Judgment for defendant.