Appellant appeals the denial of her motion for new trial on the ground that the DeKalb Superior Court erred in appointing the appellee as administratrix cum testamento annexo for the will of Emily S. Feely, decedent. Appellant enumerates four errors, each of which goes to the question of whether or not appellee was qualified to be the administratrix of Mrs. Feely’s estate (as found by the court of ordinary) which was the sole issue before the superior court. They are reviewable because they were properly raised under the general grounds of *759appellant’s motion for a new trial. Only the first enumeration has merit and is dispositive of the issue. Held:
1. Appellee’s application for letters of administration lists as her place of residence a Washington, D. C. address. This application is part of the record and has not been withdrawn or amended. That the appellant is a nonresident is therefore an admission in judicio and she is precluded from disputing this fact, be it true or false, unless it is stricken from the record. Code § 38-114; Wells v. Ragsdale, 102 Ga. 53 (6) (29 SE 165); Armour v. Lunsford, 192 Ga. 598, 599 (2) (15 SE2d 886); Carver v. Carver, 199 Ga. 352 (1) (34 SE2d 509); Lee v. Boyer, 217 Ga. 27 (120 SE2d 757); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (116 SE 922); and Maryland Cas. Co. v. Sammons, 67 Ga. App. 83, 84 (19 SE2d 314).
Since the allegation that the applicant for letters of administration resided at a stated address in Washington, D. C. was never withdrawn or stricken from the pleading, in this state of the matter "A party to a suit [or proceeding] will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record.” Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321 (2) (78 SE 900), and "Statements in pleadings may not be controverted by the party making them.” Davis v. Calhoun, 128 Ga. App. 104 (2) (195 SE2d 759). There is no transcript before us and nothing, save the bare statement made in appellant’s brief, is before us to indicate that there was or could be any controversy as to the statement of residence which the applicant made in her application to the court of ordinary.
The CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings, and the plaintiffs contradictory pleadings, if any, are to be construed in favor of the defendant. Federal Life Ins. Co. v. Ettman, 120 F2d 837, cert. den. 314 U. S. 660; Wise v. City of Chicago, 308 F2d 364 (1) (cert. den. 372 U. S. 944); L. S. Good & Co. v. H. Daroff & Sons, Inc., 263 FSupp. 635 (12); Package Closure Corp. v. Sealwright Co., 4 F.R.D. 114; Edelman v. F. H. A., *760251 FSupp. 715; Leggett v. Montgomery Ward & Co., 178 F2d 436 (6); Trans World Airlines v. Hughes, 38 F.R.D. 499 (2); Pelelas v. Caterpillar Tractor Co., 113 F2d 629, and cit., aff'g. 30 FSupp. 173, cert. den. 311 U. S. 700 (61 SC 138, 85 LE 454); Maddox v. Shroyer, 302 F2d 903; Schaefer v. Macri, 196 F2d 162 (CA 9th Cir.), cert. den. 344 U. S. 832.
The opposite party may rely upon the admission as having established the fact alleged in his favor, and no proof thereof is needed. Lovell v. Frankum, 145 Ga. 106 (5) (88 SE 569).
The brief of a party on appeal cannot serve as or instead of a transcript of evidence. We are bound to decide the case upon the record as it comes to us and not upon the briefs of counsel — and certainly not on the basis of any contrary indication in the brief to the record. Jenkins v. Board of Zoning Appeals of the City of Columbus, 122 Ga. App. 412 (2) (177 SE2d 204); Berry v. State, 123 Ga. App. 616 (1) (182 SE2d 166). "The appellate courts simply cannot nor are they authorized by law to infer from statements of counsel in their briefs facts which never managed an introduction into or even a nodding acquaintance with the record.” Airport Associates v. Audioptic Instructional Devices, 125 Ga. App. 325, 326 (187 SE2d 567).
There is no amendment of the pleadings here, in writing or otherwise, and no basis for our considering the pleading to have been amended by evidence.
In the status of this record we must conclude that it demanded a finding that the applicant was a nonresident of this state, and thus under Code § 113-1203, disqualified from being appointed as administratrix or having letters of administration issued to her in this state.
2. Code§ 113-1203 provides "None but citizens of the United States, residing in this State, are qualified to be made administrators, except that whenever a citizen of another State or Territory of the United States shall be heir at law, of equal, greater, or sole interest, of any estate of a deceased citizen of Georgia, such nonresident citizen may act as administrator of such estate. . .” The record shows that the appellee is not an heir at law as defined by Code Ann. § 113-903 as last amended by Ga. L. 1972, pp. *761880,881. A legatee, devisee or cestui que trust is not made an heir by virtue of his interest under a will. Appellee, therefore, cannot qualify as the administratrix under the statute.
Argued September 30, 1974 Decided January 22, 1975. Durwood T. Pye, for appellant. James A. Mackay, for appellee.Judgment reversed.
Bell, C. J., Pannell, P. J., Quillian, Clark, Stolz, and Webb, JJ., concur. Deen, P. J., and Evans, J., dissent.