Bowen v. Collins , 15 Ga. 100 ( 1854 )

By the Court.

Benning, J.

delivering the opinion.

Did Collins, the husband, die “seized and possessed” of the lands mentioned in this case ? This is the question for decision. (Pr. Dig. 249.)

At the time when he died, he had no legal estate, of any quantity or quality, in the lands. He had in them but a condition•al trust estate—a trust estate which was to become complete in him, only on his paying, in full, the purchase-money for the lands. Of this he had paid but a part. And at least, as long as any part of the purchase-money remained unpaid, the legal title continued to be in Bowen the vendor, ;and nothing more than an incomplete equitable title—an imperfect trust could vest in Collins the vendee.

Did this incomplete equitable title in Collins, the- husband, amount to a seizin in him ? It did not. For be the meaning of the word seizin what it may, this much, at least, is certain: that that meaning includes in it this ingredient, viza title which is complete. “ Seizin is a technical term, to denote the completion of that investiture by which the tenant was admitted into the tenure.; and without which, no free-hold could be constituted or pass”. Lord Mansfield in Taylor ex de. Atkyns vs. Horde et al. (1 Barr. 107 and 2 Black. Com. 311.)

It follows that Collins, the husband, was not, at the time of his death, “ seized,and possessed” of the lands in question.

His widow, therefore, was not dowable of those lands, and the Court erred in telling the Jury that she might be endowed .of them.

The conduct of the administrator, Bowen, “in treating the land as the property of the estate”, by advertising and selling it, ought not to be.construed into an admission, on his part, that his intestate was seized of the land, or into an admission of .anything more than that his intestate had in it such an interest, complete or incomplete, as might make it assets in his hands, to be administered; and even the admission, to this extent, would hardly be operative, except between the administrator and those interested in the assets—the creditors and distributees of the intestate.

But, indeed, unless the Law of England, such as it was when Georgia adopted it, has been changed by the Statute aforesaid, or by some other Statute, a wife is not. dowable-.of any trust estate, not even of a complete one. “ It is an established doctrine now, that a wife is not dowable of a trust estate”. Lord Hardwicke, in Godwin vs. Winsmore, (2 Atk. 525.) And see Dixon vs. Saville, (1 Brown's Ch. R. 326.)

If there is any Statute of this State, which changes the Law of England, in this respect, I am not aware of it. I think the Statute aforesaid, is not one which does.

The decision of this point amounts to a final determination of the case, and that renders it unnecessary to consider the other points assigned for error.