McCullers v. Haines

39 Ga. 195

• Court: Supreme Court of Georgia
• Decided: June 15, 1869
• Status: Published

Opinion

McCay, J.

Without doubt, in a controversy with a stranger who has the possession, a widow, in order to sustain her claim of dower must prove title in her husband. He must have been seized of the premises, and this, perhaps, involves title. Code, section 1753. Jacob’s Law Dictionary ; Art Seizure.

But here the controversy is with the administrator, who got possession of the land and title papers as administrator. It is true he sets up adverse title, and for this trial he is a stranger; but it is not as a stranger that he has possession. The proof is that the deceased died in possession. The administrator cannot get into possession as a stranger, by going in by virtue of his office. The widow is entitled to be considered as in possession. She stands in her husband’s shoes; his possession is hers. As a matter of course, if the administrator can show title in himself adversely to the intestate, the widow will fail, but the burden is upon him. The widow is entitled to stand in the place in which her husband would have stood, had an action of ejectment been brought in his lifetime against him by MeCullers. The possession was in the estate, and when the widow showed that her husband was in possession at his death, the presumption is that he was seized, and it is for the administrator or any other person setting up adverse title, to rebut this presumption as in other cases of dispute as to title. We think the verdict of the jury right under the proof.

As to the questions made in the argument about the deed, as the case turns on the verdict, we do not discuss them.

Judgment affirmed.