Miller v. Speight , 61 Ga. 460 ( 1878 )

Bleckley, Justice.

1. The motion to dismiss the writ of error is controlled adversely to the movant by 20 Ga., 531.

2. It was error for the court to exclude evidence as to who were the heirs-at-law of John Miller. , The plaintiffs claimed to be such heirs, and had a right to prove it, and to keep the proper evidence of their heirship before the court and jury. The existence of a will made no difference, nor did their recognition of the will. No will was produced, nor was there any evidence of its contents, or that it had been admitted to probate. To disturb the ordinary course of descent of realty, the disherison of the heirs-at-law must afiirmatively appear; 12 Ga., 156; 15 Ib., 152. Hntil a will is produced which breaks the course of descent, the presumption is that the realty goes where the law casts it. There was no evidence that any executor under the will had ever qualified, or that there was, or ever had been, any representative of the estate. If John Miller died seized, and the plaintiffs were his heirs-at-law, they had a prima facie case for recovery, so far as title was concerned.

3. Granting that under sections 2246 and 2485 of the Code, the burden was upon the plaintiffs to prove either that the estate was unrepresented, or that the representative consented to the bringing of this action, they were not obliged to offer evidence to these matters after the court had shut out all evidence that they were the heirs of John Miller. With a mortal wound in the vitals of their case, inflicted by an erroneous ruling of the court, there was nothing which they could do for it that would save it from •expiring before their eyes. To support its extremities when it was doomed at the center, was useless for any purpose except to render it a more impressive corpse.

Judgment reversed.-