#### HENRY ROSE v. M. K. PATTERSON.

(Filed 24 September, 1941.)

1. Pleadings § 26a: Tidal § 24—

Where the complaint alleges that defendant, as executrix, turned over to herself as legatee, personalty of the estate of plaintiff’s debtor, and thus obtained personal enrichment at the expense of creditors of the estate, O. S., 59, et seg., but the evidence tends to show, at most, devastavit, defendant’s motion to nonsuit is properly allowed on the ground of variance between the allegation and the proof, since the burden is on plaintiff to prove the cause alleged in the complaint.

2. Venue § lb—

Complaint held to allege cause against defendant as devisee for ixersonal enrichment at the expense of creditors of the estate, C. S., 59, and not against her in her capacity as executrix, and her motion to remove to the county of her qualification was properly denied, notwithstanding that plaintiff’s evidence tends to show devastavit, since an action is governed by the pleadings.

Appeal by plaintiff from Bobbitt, J., at April Term, 1941, of. BUNCOMBE.

Civil action to enforce liability against defendant for debt of A. S. Patterson, deceased, to the value of property received by defendant from decedent.

From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning error.

Barker, Bernard & Parker for plaintiff, appellant.

Edwards ■& Leatherwood and Jones, Ward & Jones for defendant, appellee.

*61Stacy, C. J.

In this action tbe plaintiff seeks to bold tbe defendant personally liable for bis claim against tbe estate of A. S. Patterson, deceased, to tbe extent of property received by tbe defendant from tbe decedent. C. S., 59, et seq. Tbe character of tbe action was considered on two former appeals, reported in 218 N. C., 212, 10 S. E. (2d), 678, and sub. nom., Thomasson v. Patterson, 213 N. C., 138, 195 S. E., 389.

Tbe evidence on tbe trial, if inculpatory -at all, points only to a devastavit on tbe part of tbe defendant as executrix of tbe estate of A. S. Patterson, deceased, and not to any personal enrichment at tbe expense of creditors. Tbe nonsuit is justified on tbe ground of a variance between tbe allegation and tbe proof. S. v. Jackson, 218 N. C., 373, 11 S. E. (2d), 149; S. v. Franklin, 204 N. C., 157, 167 S. E., 569; S. v. Harbert, 185 N. C., 760, 118 S. E., 6. “Tbe parties must allege their cause of action or defense, and prove tbe same on tbe trial, and a variance arises when tbe evidence offered does not correspond with tbe allegations of tbe pleading.” McIntosh, Practice and Procedure, 517.

Tbe refusal to remove tbe case to Swain County for trial was upheld on tbe allegations of tbe complaint. 218 N. C., 212. Tbe case is to be tried on tbe pleadings. Green v. Biggs, 167 N. C., 417, 83 S. E., 553; S. v. George, 188 N. C., 611, 125 S. E., 189, and cases there cited.

Affirmed.