(After stating the foregoing facts.)
When this case was here before this court held that if the action, as finally shaped and tried, was one brought by the administrator for the recovery of the lands for sale and distribution under the order of the ordinary, the administrator made out a prima facie case entitling him to recover upon proof of such order, and upon the admission of the defendant that the intestate owned them at the time of his death. But we further held that the nature of the original action, which was brought for the above purpose, had been changed by an amendment offered by the administrator to his petition, in which he alleged that the intervenors claimed to be the owners of these lands, and that he desired that the respective rights of the intervenors and defendant to these lands might be determined by the court for his protection, and that he might be legally discharged and relieved as administrator. We held that the controversy was thus changed from one between the administrator and the defendant to one between the intervenors and the defendant for the recovery of these lands. While this amendment is not in the present record, this court could order it sent up; but we omit to do this, for the reason that this is unnecessary, as we have this amendment duly certified in the record when the ease was here before. So in dealing with this case we shall treat it as one between the intervenors and the defendant, in which both assert title to these lands, and in which the intervenors occupy the relation of plaintiffs. In his brief counsel for the plaintiffs in error frankly states that “The real issue in the case seems to be whether Henry Mack Price was the legitimate son and only heir of Jack Price, or whether the intervenors . . were the only heirs of the said Jack Price.” We shall so treat the issue.
The court charged the jury as follows: “If you should find that Henry Mack Price was the legitimate child of Jack Price under the law, which I shall give you in charge, and was the only legitimate child of Jack Price, and that after the death of Jack Price the property in question was sold as the property of Henry Mack Price, and Mr. Brown finally became the owner of the property under such sale, the plaintiff would not be entitled to recover, but. under these circumstances, the title would have passed into *326the defendant, Mr. Brown.” The plaintiff and intervenors except to this charge, and allege that it was erroneous on the ground that it authorized the jury to ñnd for the defendant, notwithstanding the fact that the evidence of the defendant tended to show that Jack Price had a legitimate wife, without proof that she had been divorced, without proof of whether she died before or after his death, and, in the latter event, without proof of the fact that she left no other heirs at law. In other words, the movants complain that this charge authorized a verdict in favor of the defendant upon proof alone of the fact that Henry Mack Price was the legitimate son of Jack Price, when it was necessary for him to prove not only this fact but the further fact that Mack Price was the only legitimate child and sole heir at law of his father, living at the time of his death. This instruction was not erroneous as to the intervenors. The intervenors claim as the sole heirs at law of their mother, who, they assert, was the sole heir at law of the intestate. If the proof established the fact that the intestate left a legitimate son, who was his heir at law,'then the intervenors failed to make out a case, whether the intestate left other heirs at law or not. If the intestate died leaving a wife and child or children, they would be entitled to his estate, and not the intervenors. Their claim would be defeated by proof that the defendant was his legitimate son and one of his heirs at law, without proof that the intestate did not leave a wife or child or children who would share with this son his estate as heirs at law. The charge complained of was more favorable to the intervenors than they were entitled to, because it put the burden upon the defendant of showing that Henry Mack Price was the legitimate son and sole heir at law of the intestate, when the defendant only had to show that he was such son and heir at law, without proof that his mother or her children were not entitled to share equally with him in the estate of the intestate. This case would be different if the defendant had brought suit as plaintiff to recover these lands as the purchaser from Henry Mack Price, the heir at law of his father. In such a case the burden would have been upon him to show that this son was the sole heir at law of the decedent, or to show how many heirs the decedent left, as such proof would be necessary to establish the extent of his recovery. Dupon v. McLaren, 63 Ga. 470; Terry v. Brown, 142 Ga. 224; 230 (82 S. E 566); Price v. Brown, *327143 Ga. 671 (85 S. E. 870); Overby v. Phelps, 150 Ga. 293 (103 S. E. 431).
The court charged the jury as follows: “You look to the evidence in this case and determine what you may find the truth to be, as to whether it is made to appear by a preponderance of the evidence that Henry Mack Price was born within what was regarded as a state of wedlock, or when Jack Price and the mother of Henry Mack Price were living together as husband and wife; and if so, if, under the rules of law given you in charge, you should also find that he was the only heir of Jack Price at the time that the sale of the property was made, when it was sold as the property of Plenry Mack Price, if it was sold, the title would have passed under the sale and the administrator of the estate of Jack Price would not be entitled to recover against the defendant, E. -.Brown.” Movants except to this charge and allege that it was error for the reason that it was necessary for the jury to find that Henry Mack Price was the only heir at law of Jack Price at the time of his death, before they would be authorized to find for the defendant. This instruction was not erroneous for the reason assigned. If Henry Mack Price was the heir at law of the intestate at the time of the sale, he necessarily must have been such at the death of the intestate. As we have stated above, it was not necessary for the defendant to prove that this son was the only heir of the intestate. Proof that he was one of the heirs of the intestate would defeat the intervenors.
The court instructed the jury as follows: “I charge you, gentlemen, that under the evidence the plaintiff would be entitled to recover the land described in the petition, unless the defendant has established his contentions with respect to Henry Mack Price being a legitimate child of Jack Price, and the only heir of Jack Price. That is the real question in the case for your determination, in determining whether or not the plaintiff is, or is not, entitled to recover.” Movants except to this charge on the ground that it was erroneous for the reason that the burden was on the defendant to show that Henry Mack Price was the only heir of Jack Price at the time of the latter’s death, and that the fact that he might be the only heir living at the time did not preclude the plaintiffs from recovery, if, at the time of the death of the intestate, there were other heirs or descendants of heirs in life when the *328suit was filed. This charge was not erroneous as against the plaintiffs, for the reason assigned. What we have said in the second division of this opinion is applicable to the above instruction. Proof of the existence of a single legitimate child of the intestate in being at the time of his death would defeat recovery by the intervenors. The burden did not rest upon the defendant of showing how many children the intestate left at his death, or that his wife was in life at that time.
Mo.vants insist that the court erred in failing to charge the jury that the burden of proof rested upon the defendant to establish his contention that Henry Mack Price was the sole heir at law of Jack Price at the time of his death, by a preponderance of the evidence. Failure of the court to charge upon the burden of proof or preponderance of evidence, in the absence of a timely request therefor, will not require the grant of a new trial. Small v. Williams, 87 Ga. 681 (6) (13 S. E. 589); Askew v. Amos, 147 Ga 613 (5) (95 S. E. 5).
Movants further contend that “The court erred in failing to charge the jury that if they found that Jack Price and the mother of Henry Mack Price were husband and wife at the time Henry Mack Price was born, and therefore he was the only legitimate child of Jack Price, and they further found that other children or another child was born under similar conditions, that they must further find that the wife and any other children of Jack Price were dead at the time of the death of Jack Price, and that they left no heirs, in order for the defendant to recover.” The court did not err in failing so to charge the jury, for the reasons (1) that there was no timely request for such charge, and (2) because such omitted instruction does not contain a correct principle of law applicable under the facts of this case.
The verdict is supported by the evidence.
Judgment affirmed.
All the Justices concur.