#### HETTIE BARHAM et als. v. MATT HOLLAND et als.

(Filed 24 September, 1919.)

Descent and Distribution — Heirs at Law — Presumptions—Instructions—Appeal and Error — Reversible Error.

The law presumes tbat the estate of a deceased person descends to bis heirs at law upon Ms death, and an instruction that the burden of proof is on them to show intestacy is reversible error.

Special proceedings for partition of land instituted before clerk, transferred to Superior Court on an issue of sole seizin, made by one of defendants, Lucy Holland, etc., and tried before Kerr, J., and a jury at February Term, 1919, of HabNett.

There was verdict for defendant on the issue. Judgment, and plaintiffs excepted and appealed.

J. R. Baggett and Clifford & Townsend for plaintiffs.

E. F. Young and F. T. Dupree for defendant.

Hoke, J.

There were facts in evidence tending to show that the property in controversy belonged to one Lem Holland; that in 1882 he left the State, going to South Carolina, and that no message had been received from him by any of his family or others “since about a year or two after he left the State, and the reputation in the family was that he was dead,” and plaintiffs and defendants are his heirs at law, brothers and sisters of the deceased or their children; that, just before leaving, *105Lem Holland, tbe owner, placed tbe property in possession of bis brother, Jim Holland, to bold tbe same for tbe owner, and not long-after Jim died, leaving bis widow Lucy and several of their children in possession, and they or some of them bad continued to live on tbe place till institution of tbe suit.

There was testimony for defendant tending to show that Lem Holland placed bis brother Jim and bis wife on tbe place as owners, and that since Jim’s death bis widow, Lucy, who sets up tbe plea of sole seizin, bad continued to occupy and possess tbe property and that such possession was adverse and in tbe assertion of ownership, that she was tbe sole owner, as alleged in her plea. On tbe issues thus raised bis Honor, among other things, charged tbe jury:

“Tbe burden, then, is upon tbe plaintiffs to satisfy you by tbe evidence, and by its greater weight, that Lem Holland is dead, and that be died seized and possessed of this piece of land; (2) that be died intestate, that is to say, that be did not leave a will and give this land to anybody else; (3) that tbe parties to this action are bis heirs at law; that is, that they are tbe ones who are entitled to bis property in tbe event that he did die owning this property, and that be did die without any will conveying it to somebody else.” And further: “In order that you should answer tbe issue 'Yes/ it is essential, as I said, that you should find all of these facts to exist from tbe evidence, by its greater weight, as I have defined greater weight to you, and if you fail so to find, you will answer tbe issue No.’ ” There is no presumption which requires that before an heir at law can recover as for lands descended be should show that bis ancestor died intestate. On tbe contrary, tbe presumption is tbe other way. Speaking to tbe subject in 9 E. C. L., p. 9, sec. 3, the author states the prevailing qiosition as follows: “The heir is favored in law. He never takes by tbe act or intention of tbe testator. His right is paramount to and independent of tbe will, and no intention of the testator is necessary to its enjoyment. He needs no argument or construction showing intention in bis favor to support his claim. They belong to tbe party claiming under tbe will and in opposition to him. To cut off either tbe heir or next of kin, therefore, tbe estate must be devised or bequeathed, expressly or by necessary implication, to some other person, and whoever claims against tbe laws of descent must show a sufficient written title, for an estate in fee is presumed to descend, on tbe death of tbe ancestor, in pursuance of tbe laws of inheritance, unless tbe descent is shown to have been interrupted by a devise.”

Tbe cases referred to are in support of tbe text, among others Sip-man’s Appeal, 30 Pa. St., 180; Graham v. Graham, 23 W. Va., 36, and our own decisions on tbe subject are in full recognition of tbe principle. *106 In re Hedgepeth, 150 N. C., 245; Cox v. Lumber Co., 124 N. C., 78; Floyd v. Herring, 64 N. C., 409.

As shown in some of the cases cited for defendant; Blue v. Ritter, 118 N. C., 580, etc., there is, at times, a presumption against partial intestacy, that is, when it is established that an ancestor has made a will it is presumed, in the first instance, that he intended to make disposition of all of his property, but on the facts of this record the presumption is in favor of lands descended, and there is no burden on the heir at law to show that there was no will.

For the error indicated there must be a new trial of the cause, and it is s.o ordered.

New trial.