Hortman v. Vissage , 193 Ga. 596 ( 1942 )

1. When an administrator sues for land, he makes out a prima facie case for its recovery upon proof that his intestate died seized thereof, and that the estate owes debts, which makes it necessary for the personal representative to administer the land for the payment thereof, the administrator having obtained leave to sell the same.

2. Such prima facie case, the suit being against the heirs at law of a deceased son of the intestate, is not overcome by evidence that the deceased son had made declarations that in his lifetime there had been between the heirs a division in kind of the lands formerly owned by the intestate, and that the portion sued for had by such division been set apart to him.

3. The children of said deceased son, in a suit by such administrator, are not entitled to receive credits for permanent improvements placed by them on such portion of said land while in possession after the death of the intestate, and claiming the right thereto only by virtue of an agreement to divide in kind the realty, the only evidence of their right to the possession being proof of the declarations above referred to.

4. The ground of the motion that the judge permitted the husband of a witness to stand by the latter and hold her hand when she was testifying, in view of the recitals in the motion and the record as a whole, is not cause for reversal.

5. The testimony of certain persons, heirs of the deceased, that if there had been any such division as claimed they would have heard about it, and that they never had, was negative in character; and even if its admission were erroneous, it could not have affected the result.

6. The verdict being demanded by the evidence, the ruling of the judge in directing the jury so to find, and in refusing a new trial, will not be reversed.

Judgment affirmed. All the Justicesconcur.

No. 14055. MARCH 11, 1942. This case was before the court at the September term, 1940, where a statement was made as to what the pleadings contained, and in the opinion the present suit was characterized as one which for all intents and purposes is an action to recover possession of the land from a daughter of a deceased heir of the intestate. Hortman v. Vissage, 191 Ga. 446, 450 (12 S.E.2d 294). At the conclusion of evidence at the trial the court, on motion, directed a verdict in favor of the plaintiff, decreeing that the title was in the plaintiff, and providing for the sheriff to dispossess the defendants and put the plaintiff in possession. By motion for new trial the defendants assigned error on this direction, and complained that while a witness for the plaintiff was on the stand testifying, her husband walked up and stood by her side, and that, notwithstanding the judge directed him to move away, the husband stated to the court that he knew his wife was very nervous and he had to stay there with her, and actually held her hand a part of the time, and continued to stand by her side for quite awhile, and then moved away from the witness-stand. As to this ground the judge added the following note: "The witness was of an extremely nervous temperament, and her husband standing next to the witness-stand was for the sole purpose of keeping his wife from breaking down." The motion assigned error on the exclusion of evidence offered by the defendants and the admission of evidence offered by the plaintiff. The evidence excluded consisted of the testimony of Mrs. Hortman that she heard her deceased father, who was one of the sons and heirs at law of the intestate, say that there had been a division in kind, between the heirs, of the real estate left by the intestate, and that his share was the particular tract of land here in question; and the testimony of one or more witnesses that the deceased father of Mrs. Hortman told them that there had been a division in kind between the heirs, and that his share was the land in dispute. The evidence the admission of which was complained of consisted of testimony given by several grandchildren of the intestate, to the effect that there was never any division in kind; that they knew this, because they had never heard their parents say there had been a division of the estate between the heirs; and that if there had been such a division they would have heard of it from their parents. There was positive testimony by one of the sons of the intestate that there had never been a division of the estate between the heirs. The motion for new trial was overruled, and the defendants excepted.