Usry v. Cato

Russell, C. J.

1. The grounds of special demurrer were met by amendments, and the petition as amended set forth a cause of action sufficient to withstand a general demurrer.

2. The refusal of the court to instruct the jury as requested was not erroneous, for the reason that the requested instruction, under the facts of this case, was not a correct statement of the law. “If the administrator appointed consents thereto,” the heir may sue for lands of his intestate in his own right (Civil Code of 1910, § 3933), and in such case “there is no necessity of an allegation and proof that the intestate owed no debts.” Reed v. Norman, 157 Ga. 183, 185 (2) (121 S. E. 310). In the present case the plaintiff was the sole heir at law of the deceased and was one of the administrators of his estate, and her coadministrator was a defendant in the action, and himself claimed, in his individual capacity, title to the property for which the heir sued.

3. While the evidence was conflicting, it was sufficient to authorize the verdict; and as this finding has the approval of the trial judge and no errors of law appear, it was not erroneous to overrule the motion for a new trial.

-Judgment affirmed.

All the Justices concur. M. C. Barwick, for plaintiffs in error. Roy V. Harris and B. F. Walker, contra.