I think that the charge of the court as complained of in the 6th ground of the amended motion and treated in division four of the opinion was error requiring the grant of a new trial. The application of Veronia Cannady for letters of administration alleged that she had been selected by the mother of the deceased and that petitioner was a niece of the deceased. The application was amended by adding the written selection of petitioner by two brothers of the deceased. Bill Jones filed a caveat to the application alleging that neither the applicant nor those who selected her were the next of kin of the deceased but that he was the husband and sole heir at law of the deceased. It will be noted that the application did not allege that the persons selecting the applicant were a majority of the nearest of kin. Since the application did not negative the fact that the applicant was entitled to the appointment, the application *Page 466 was not subject to general demurrer. Medlin v. Downing LumberCo., 128 Ga. 115, 118 (57 S.E. 232). I do not think that the general rules of pleading apply to applications for letters of administration. If there is a caveat the burden of proof is on the applicant to show that he or she is entitled to the appointment, whether there is such an allegation in the application or not. Under the judge's charge in this case the applicant made out her case by simply proving that the mother and two brothers selected her to act as administratrix and the burden was then placed on the caveator to show that they were not the majority of the nearest of kin, whereas, under the law as I understand it, the burden of proof was on the applicant to show that those who selected her were the majority of the nearest of kin which necessarily included the fact that neither the applicant nor any other man was the husband of the deceased. The caveat in this case did no more than deny the things which it was the applicant's duty to prove. If it should be argued that the caveator could be appointed merely because the applicant failed to prove that he was not the husband by a preponderance of the evidence the answer is that it is just as reasonable and equitable as for the applicant to be appointed because the caveator failed to prove by a preponderance of the evidence that he was the husband and sole heir. The burden of proof lies with the person starting the litigation and asserting facts. If the caveator had made the application the burden would have been on him. Weeks v. Sego, 9 Ga. 199. The fact that an affirmative is alleged in a caveat does not necessarily place the burden on the caveator and in cases analogous to this one similar charges have been held to be erroneous. Mobley v. Lyon, 134 Ga. 125 (67 S.E. 668, 137 Am. St. R. 213, 19 Ann. Cas. 1004); FarmersState Bank v. Kelley, 159 Ga. 280 (125 S.E. 467). The making out of a prima facie case by the party originally having the burden of proof does not relieve him of the duty of ultimately establishing the essential facts of his case by a preponderance of the evidence. Richter Brothers v. AtlanticCo., 59 Ga. App. 137 (200 S.E. 462). The case cited by the majority as authority for their ruling in my opinion does not support the ruling. The statement made therein (Drawdy v.Hesters, supra) is taken from Clark v. Cassidy, 62 Ga. 407,410. In the latter case an administrator brought bail *Page 467 trover against Clark for certain personalty. Clark contended the deceased was his wife and that he was her sole heir and that there were no debts. My opinion is that the effect of the ruling in that case is that the burden of proof of showing title in defendant was on him not merely because he claimed to be her husband but because letters of administration had been granted to another and he admitted possession of the property under an adverse claim which relieved the plaintiff from proving a conversion.
I think the burden of proof was on the applicant to prove that she was entitled to administer the estate, that this included the fact that the caveator was not the husband of the deceased, and that the court erred in placing the burden of proof on the caveator of proving that he was the husband of the deceased.