132 Ga. 455 | Ga. | 1909
In an action of complaint for land the plaintiff as administrator was nonsuited. On the trial his evidence showed that the intestate died in possession of the land, and that the defendant was the widow of a deceased son of plaintiff’s intestate who survived the intestate. The evidence did not show whether the son died testate or intestate. At the time of the death of the son ■ (defendant’s husband), she was living with him on the property in dispute. It was not shown that the plaintiff as administrator had obtained an order to sell, nor was it otherwise shown that it was necessary for the administrator to have possession of the land in order to pay debts or make distribution among the heirs, nor was it shown that the .administrator had ever been in possession and had lost it.
The wife was an heir-at-law of her deceased husband. Civil Code, §3355. There being no evidence that the husband left a will, it is presumed that he died intestate. Miller v. Speight, 61 Ga. 460; 14 Cyc. 20. As the defendant was heir to a son of plaintiff’s intestate, she had an interest, in the land, acquired under the laws of inheritance. That interest was not antagonistic to the title of the plaintiff’s intestate, but was derived through it. In order to have recovered from the defendant’s husband it would have been incumbent on the plaintiff to show that he had an order to sell, properly granted, or that it was necessary for him to have possession for the purpose of distribution among the heirs or for the purpose of paying debts, or that the land had been in his possession, and without his consent was at the time of the trial Iield by the defendant. Dixon v. Rogers, 110 Ga. 509 (35 S. E. 781); Holt v. Anderson, 98 Ga. 220 (25 S. E. 496). The Civil Code, §3358, provides: “The administrator may recover possession of any part of the estate' from the heirs-at-law, or purchasers from .them; but in' order to recover lands, it is necessary for him to show upon the trial, either that the property sued for has been in
Judgment affirmed.