215 Ga. 16 | Ga. | 1959
In passing upon the sufficiency of a petition as against a general demurrer, the petition will be construed most strongly against the petitioner. Applying this rule in the instant case, we find that the allegations are contradictory, and that the contradictions must be resolved against the petitioner. The petition is contradictory in that it alleges that the deceased owned certain property at his death. It then alleges, without any explanation as to the circumstances, that, at the time of the death of the deceased, all of the enumerated property was in the name and possession of other named persons. It is not alleged how or when or for what purpose, whether legal or illegal, the property was placed in the name and possession of others. No attempt is made to cancel or set aside the various conveyances involved in the transfer of real property, and it is not alleged who paid the purchase price for the personal property. It is not alleged whether the transfers made by E. I. Sinko and R. A. Sinko to the defendant some three years after the death of Nathan Sinkovitz were gratuitous or for a valuable consideration; whether the transfers were gifts, or sales regular in every way.
The allegation to the effect that the deceased owned certain property is a mere conclusion of the pleader, which the facts alleged in the petition do not support, but which in fact support a contrary conclusion. Construing the petition most strongly against the pleader, the petition alleges that, at the death of the deceased, he owned no property, and therefore could have left no estate, which is what the defendant told the plaintiff fifteen years ago. It follows, therefore, the judgment sustaining the general demurrer to the petition was not error.
Judgment affirmed.
