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Johnson v. Whiton

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Brief Fact Summary. A grandfather conveyed property to his granddaughter, but in a way that did not fall in one of the traditional estates.

Synopsis of Rule of Law. A person cannot create a new type of inheritance by will.

Points of Law - Legal Principles in this Case for Law Students.

The action of the defendant in trespassing upon the rights of the plaintiff is a continuing wrong, and this case comes within the convenient and just rule, sanctioned by all of the authorities in this State and by the great weight of authority elsewhere, that recoveries in such cases may be had in successive actions until the wrong or nuisance shall be terminated or abated.

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Facts. A will gave to a granddaughter and her heirs on her father’s side property. She attempted to convey the property to another, but the party did not think she could convey a fee simple absolute.

Issue. When a testator puts words of limitation that restrict the descent of the property, will those limitations be valid?

Held. No.
The clause in the will conveys legal title. The words limiting the conveyance to heirs on her father’s side are words of limitation; it restricts the intestate descent of property. A person cannot create a new kind of inheritance, such as the testator attempts to do here. The words of limitation will be stricken, and the granddaughter will be deemed to have a fee simple absolute.

Discussion. When a person tries to convey property in a way that does not conform to one of the traditional estates, the limitations in that conveyance will be invalid. This is to prevent restraints on alienation.

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