The defendant was convicted of a violation of Code 1907, § 7828. Tbe complainant contained three counts. Count 1 was stricken on demurrer.
Count 2 alleged tbe land entered to have been that of “P. M. Long, executor of B. M. Long’s estate.” As objected by demurrer to count 2, this averment of ownership Avas insufficient. Tbe title to lands, unless otherwise devised, vests eo instante upon death in the heirs of tbe decedent. Tbe personal representative takes no title to lands owned by-tbe decedent at tbe time of decease. Generally the scope of the right is limited to the appropriation of such lands to tbe payment of debts, etc. Of course, it is entirely possible that tbe title to such lands may be vested by will in an executor, and that tbe ownership, within section 7828, may be in tbe *118executor as such. But count 2 avers no such status with respect to the land in question. On the contrary, the averment makes no case of title other than that usually attending an executorship of an estate of a testator. It cannot, to support the count in this regard, be assumed that by will B. M. Long vested the title to these lands in P. M. Long as executor. The uncertainty, to state it most favorably to the count, of the count in respect of averment of ownership cannot he aided, to ■certainty, by the assumption indicated. Unless the will of B. M. Long, deceased, effected to vest the title to the land in the executor as such, the averment of ownership ■should have been either in the devisee or devisees, if such there were, or in the heirs of the testator. — Walker v. State, 111 Ala. 29, 20 S'outh. 612.
Count 3 imputes the ownership of the land to ten persons, but by the significant omission of the word “and” between the names of the two last-named persons, a comma being used after each of the ten names, it was left entirely uncertain whether the land was the joint or several property of the named persons. Doubtless it was the purpose of the pleader to aver a joint ownership of the land by the designated persons. Under ■section 7828 it was the right of the defendant to be informed upon whose land he was charged to have entered and committed the depredations alleged. The uncertainty mentioned should be removed on the retrial, to which we must remand the cause.
The deed from Bates to B. M. Long was properly admitted in evidence.
There was a possible inference favorable to the state arising from the fact that defendant, at the time he was said to have cut and removed the wood and timber in question, was engaged in the “cross-tie” business. There was proof tending to show that the place from *119which wood and timber on the land in question had been taken gave evidence of the “hewing” usually employed to make a cross-tie. The court properly allowed the testimony mentioned.
The defendant objected to several questions propounded to witnesses, but many of these questions were answered in such manner as to not work injury to defendant.
There was no other prejudicial error to the defendant. The judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Anderson and Mayfield, JJ., concur.