Griffith v. Griffith

5 Del. 5

• Court: Superior Court of Delaware
• Decided: April 5, 1848
• Status: Published

Opinion

By the Court.

Harrington, Justice.

We cannot find any case where the widow has been endowed out of an purely equitable estate, except as against the heir-at-law, in cases of intestacy. The remark of Chancellor Bidgely, in Robinson vs. Harris’ lessee, is not a decision, though the report of it is authentic, having been furnished me by the executor of that distinguished judge.

The case of dower in mortgaged premises stands on its own ground. The mortgage is regarded, before foreclosure, as merely a security; and the estate of the mortgagor though in form merely equitable, is substantially a legal estate. Yet it is not improbable, considering the fact that so much land is held in Sussex county under alienation bonds, that dower has often been assigned out of such estates; but Such assignments may possibly be supported on the principle referred to in this argument, that the heir would not be permitted to dispute the seizin of his ancestor, from whom both claim.

And we think that principle very reasonable, extending even to the present case. The defendant claims the lot No. 7, by virtue of the devise from William Griffith, according to the title of William Griffith. For though the administrator’s deed was made directly to him, and not to his father, this was by special order of the Orphans’ Court, under the act of assembly; and conveyed no more than the title which William Griffith had at the time of his death. That title was a legal seizin by relation, according to the cases of Miles vs. Wilson, and Robinson vs. Robinson. The defendant claims wholly as devisee; merely as the party entitled under William Griffith’s will, to the property devised, and we think he is, on the principle of the cases cited, estopped to deny the seizin of his father. If William Griffith had, in his life time, by deed, conveyed this lot to the defendant, it would be just like the cases cited from the New York reports; the son claiming under the father’s deed could not dispute the father’s seizin. Can he then dispute it when claiming the same title under the father’s will? We think not. And if he could, it would put it in the power of any husband holding but an equitable estate, to defeat the widow’s dower by a will devising it to his heir-at-law.

Cullen, for appellant. Layton, for appellee.

On this ground we are of opinion that the decree of the Orphans’ Court ought to be affirmed; but additionally, it does not fully appear by the record that any dower was in fact assigned to the appellee, out of, or on account of, the lot number seven.

Decree affirmed.