Allen v. Gates, 145 Ga. 652

145 Ga. 652 | Ga. | 1916

Lumpkin, J.

(After stating the foregoing facts.)

There is no presumption that a deceased person died leaving a will which disturbed the ordinary course of descent of land. One who relies on that fact for recovery or defense carries the burden of establishing it. Miller v. Speight, 61 Ga. 460 (2), 462. If the allegations of the petition sufficiently showed that the plaintiffs were all of the heirs at law of the deceased owner of the lot, it was not necessary for them to allege and prove intestacy of their father. If there was a will which prevented their inheriting, that might be set up as a defense. There was also a claim of right to redeem the land under a tax sale. Civil Code (1910), §§ 880, 1173. The petition was not subject to the general grounds of demurrer that it set out no cause of action.

There is no presumption as to what heirs a decedent left. If particular persons rely on descent to them in order to recover land, they must allege and prove, not only that the decedent was the father of the plaintiffs, but facts showing that there were no other persons entitled to share with them as heirs, so that they would be the sole heirs and entitled to recover the whole interest, or else how many were entitled to share with them, so that the interest which they could recover can be identified. This is the rule in actions at law to recover land. Powell on Actions for Land, § 280, and citations. Where the plaintiffs invoke the equitable power, claiming to be the owners of the land as heirs of a decedent, attacking a tax sale thereof as void, and praying that it be canceled as a cloud on their title and that the title be decreed to be in them, the rule of pleading requiring them to make allegations of fact showing that they inherited the entire title, or what interest passed to them by inheritance, is the same. It is not enough, as against a demurrer specially raising the point, to allege in general terms that the plaintiffs are all of the heirs, or to refer to the decedent, as their father., This does not suffice to show that the decedent left no other children, or persons standing in the place of deceased children.

A widow is not unconditionally and in all events an heir of her deceased husband. She may elect to take a dower or a child’s part. There is no presumption, in the absence of any direct or inferential evidence on the subject, that she elected to take a child’s part; and in a suit by children of the decedent, as his heirs, to recover land owned by him at his death, it is not necessary to allege that he left no widow, or, if he left one, that she did not take a child’s part.

There was an allegation, perhaps informally made in the exhibit to the petition, that there were no debts and no administration, which was sufficient to comply with the ruling in Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44).

Some of the grounds of the demurrer are sufficiently dealt with in the headnotes. Except as indicated, there was no error in overruling the grounds of the demurrer.

Judgment reversed.

All the Justices concur.