
    Simmons, administrator, v. Defoe.
    August 16, 1912.
    Claim. Before Judge Bell. -Fulton superior court. January 26, 1911.
    Counsel cited Civil Code, §§ 4034, 5170, 5176, 5177, 6037-6039; Hull v. Watkins, 134 Ga. 779; Thompson v. Atwater, 84 Ga. 270; 
      Rogers v. Dickey, 117 Ga. 821; Dixon v. Rogers, 110 Ga. 510; Evans v. Brown, 80 Ga. 657; Campbell v. Roberts, 66 Ga. 734; Knowles v. Jourdan, 61 Ga. 300; Powell v. Westmoreland, 60 Ga. 572; Fulton County v. Amorous, 89 Ga. 615; Wolfe v. Baxter, 86 Ga. 705; Bagley v. Kennedy, 85 Ga. 703; Findley v. Johnson, 84 Ga. 69; Green v. Hill, 101 Ga. 258; Jordan v. Central City Loan Co., 108 Ga. 495; Black v. Gate City Co., 115 Ga. 15; Shumate v. McLendon, 120 Ga. 399.
   Fish, C. J.

An administrator applied for leave to sell land of his intestate. Pending the application a claim was interposed and returned to the superior court. On the trial the undisputed evidence showed, that the intestate purchased the land in controversy, gave to his vendor a series of notes for the purchase-price, took from him a bond for title, went into possession, thereafter paid some of the notes, and died in possession of the land, leaving a widow, who, with two minor grandchildren, conlhiued to reside on the premises. It further showed, that, some two yeais after the death of the intestate, the claimant married his widow and occupied the premises with her for some five years prior to the trial. The claimant, who was the only witness in his behalf testified: “I married his [intestate’s] widow about two years mi his death, and movfed into the house by reason of becoming her Iiusi.; :i-l, and that was the only reason for going into possession of the property at that time.” Held, that under such evidence the trial judge erred in granting a “nonsuit” against the administrator on the ground that he had “failed to carry the burden, it appearing- from the testimony that the claimant . . is in possession of the property in dispute.”

Judgment reversed.

All the Justices concur.

Simmons <& Simmons, for plaintiff in error.

Virlyn B. Moore, contra.  