ON REHEARING.
Hines, J.The motion for a rehearing is based upon the fact that we overlooked the principle of law announced in the' second headnote and in the second- division of the opinion in the case of Payne v. Rosser, 53 Ga. 662. After rightly recognizing the principle that the contingent interests of executory devisees are transmissible to their heirs, where the contingency is not as to the person, but as to the event upon the happening of which such interests are to fall into possession, this court announced this common-law doctrine, to wit: “That such interests did not descend to and vest in those who were heirs at the time of their decease, but to such as answered the character of heirs to them respectively, *458when ihe eslale in Mary” (such executory devisee) “was determined in 1872, and the executory devise fell into possession.” It is insisted by the able and distinguished counsel who made this inotion for a rehearing, and whose integrity and fairness are as unquestioned as his-ability, that this principle of law is still the law in this State, and should control the decision in this case. As the decision in that case was by a full bench, the above principle became the law of this State, if it was involved and decided in that case, and if it does not conflict with older decisions of the court. Furthermore, we felt that, being a rule governing the devolution of landed interests in this state, if once adopted by this court as the law, it should not be lightly disregarded or overruled. For this reason we granted a rehearing in order that the question might be more fully considered.
We do not think that the point which we are considering was involved in that case, and therefore the declaration of the above principle as the law of this State was obiter dictum. In that case the person who claimed to have inherited the interests of the executory devisee in the land involved in that case was the sole heir of the devisee both at the time of the latter’s death and at the time when the estate fell into possession. So the only question in that case - was, whether the interests of a contingent executory devisee, the devise being one of land, and the contingency being as to the event upon which the estate would vest in possession and not as to the person who was to take, descended to the heirs of the executory devisee; and this court in that case properly held that such an interest descended to the heirs of such a devisee.
The common-law doctrine, announced in Payne v. Rosser, was based upon the common-law maxim, non jus sed seisina facit stipitem. Accordingly it was held by the courts in England, “that if an heir upon whom an inheritance.had been cast by descent dies before he has acquired the requisite seisin, his ancestor, and not himself, becomes the person last seized of the inheritance and to whom the claimants must make themselves heirs.” Oliver v. Powell, 114 Ga. 592 (4) (40 S. E. 826).
Now, non seisina sed jus facit stipitem, the old common-law doctrine, is changed by statute in England, and is generally rejected throughout the United States, where ownership or title to property is substituted for seisin, and the heir takes all the real *459estate owned by the ancestor at the time of his death. Now “the heirs of a reversioner . . take as absolutely as if the ancestor were actually seized as of a freehold in possession.” 3 Washburn on Keal Property, *410. In Thompson v. Sandford, 13 Ga. 238, this court held: “The rule of the common law, seisina facit. stipitem, held not to be in force in Georgia, and that any estate, real or personal, held by any title, legal or equitable, without actual seizin, will descend to the heirs of the owners.” This principle was reannounced and followed in Anderson v. Burney, 147 Ga. 138 (93 S. E. 93). So we are clearly of the opinion that the ancient doctrine of the common law, upon which counsel for the defendants in error rely, has been repudiated by this court, as it has been in most of the courts of this country. 18 C. J. 821, § 24. It follows that we must adhere to the rulings already made in this case.
All the Justices concur except Gilbert, J., absent for providential cause.