DeLong v. DeLong

215 S.E.2d 531, 134 Ga. App. 635, 1975 Ga. App. LEXIS 2110

Opinion

Bell, Chief Judge.

Plaintiff brought this suit in trover to recover three items of personalty from the defendant. She claimed title in her capacity as the administratrix of her husband’s estate. Defendant denied the claim of title. The case was tried by the court. A judgment for plaintiff was entered and defendant appeals. Held:

In a trover action the burden is on the plaintiff to prove title and the right of possession. Lynch v. Etheridge, 72 Ga. App. 712 (34 SE2d 670). Plaintiff failed to prove that she was the administratrix of her husband’s estate. Title to personalty owned by a decedent vests in the administrator. Code Ann. § 113-901. Absent proof of her appointment as the personal representative of the decedent, she could not recover in trover. Robinson v. McDonald, 2 Ga. 116, 120. Thus the evidence demands a judgment for defendant. It was error to deny defendant’s motion for involuntary dismissal made at the close of the plaintiffs case and to enter judgment for plaintiff. We reverse with direction to enter judgment for defendant.

Judgment reversed with direction.

Webb and Marshall, JJ., concur.