Harris v. Shelton , 151 Ga. 615 ( 1921 )

George, J.

(After stating the foregoing facts.) The first ground of the demurrer to the petition is as follows: “ Because, under the facts as alleged, the plaintiffs are not entitled to recover, no sufficient facts being alleged to show a cause of action in the plaintiffs.” It will be noted that the plaintiffs seek to recover the real and personal property devised and bequeathed by S. H. Harris to Mattie Shelton, his granddaughter. The plaintiffs describe themselves as the children and grandchildren of S. H. Harris. The petition does not unequivocally allege that the plaintiffs were the only children and grandchildren of S. H. Harris. It is alleged that S. H. Harris and wife had three children, and three children are named in the petition. It is also alleged that plaintiffs are the legal heirs of Mattie Shelton, “and should inherit her entire estate.” It is not alleged that the plaintiffs are the only heirs at law of Mattie Shelton. It is clear from the petition that S. H. Harris had at least one other child, to wit, Mrs. Clara Harris Shelton, the mother of Mattie Shelton, whose estate is involved in this litigation. See Allen v. Gates, 145 Ga. 652 (2), 655 (89 S. E. 821). But if it be conceded that the allegations of fact are sufficient to show that the plaintiffs are the only heirs at law of Mattie Shelton, we are of the opinion that the petition was properly dismissed on general demurrer. It is not alleged that S. T. Harris, the administrator of Mattie Shelton, was guilty of any fraud. On the contrary, the petition discloses that S. T. Harris, in making application to the court of ordinary for letters of administration upon Mattie Shelton’s estate, acted in good faith. He sold the land belonging to her estate at the court-house door, within the legal hours of sale, and after due advertisement. The lands were knocked off to E. W. Shelton, the highest bidder. It is not charged that S. T. Harris knew that E. W. Shelton was not the father of Mattie Shelton, or that he was acting in collusion with E. W. Shelton, or that he had refused to bring suit against E. W. Shelton for the recovery of the land or personal property, or that he had consented to the suit by the heirs. So far as is alleged, S. T. Harris was the regularly appointed administrator of Mattie Shelton’s estate. He gave bond as such administrator. Neither he nor his bondsmen are alleged to be insolvent. The sale of the real estate was regular in all respects. The bid of F. W. Shelton represented the full value of the land conveyed to him by the administrator. In these circumstances the petition does not set forth a cause of action for the cancellation of the administrator’s deed, and for the recovery of the land with mesne profits, or for the personalty, as prayed in the petition. In the absence of any allegation of fraud, the facts alleged do not authorize a court to vacate the order appointing S. T. Harris administrator of the estate of Mattie Shelton. If the facts alleged were sufficient to authorize the court to set aside the judgment of the court of ordinary 'appointing S. T. Harris administrator of the estate of Mattie Shelton, the judgment of that court is not subject to collateral attack. No right in the heirs to recover the personalty is shown. There are other defects in the petition; but for the reasons indicated above the petition was properly dismissed, and the judgment sustaining the demurrer must be affirmed.

The right of plaintiffs to bring in question the paternity of Mattie Shelton in a proper proceeding is not denied. The presumption of legitimacy of children born in wedlock can be overcome by clear and convincing proof, the common-law doctrine not being of force in Georgia. See Civil Code (1910), § 3012. The paternity of Mattie Shelton is only incidentally involved in the present suit; and since plaintiffs can not recover, under the allegations of the petition, the petition will not be retained merely for the purpose of adjudicating the question incidentally involved, to wit, the paternity of Mattie Shelton.

Judgment affirmed.

All the Justices concur.