#### Caswell, administrator, *v.*Moten.

August 10, 1910.

Claim. Before Judge Seabrook. Liberty superior court. February 19, 1909.

J. M. Caswell, as administrator of the estate of Isaac Futch, deceased, obtained an order to sell personal property of the estate, and thereupon undertook to sell certain cattle as the property of such estate, to which cattle Mary Moten interposed a claim, alleging that the cattle belonged to her. The verdict was in favor of the claimant; whereupon the administrator made a motion for a new trial, upon the ground that the verdict was contrary to law and contrary to the evidence. This motion was overruled, and the administrator excepted. Upon the trial the claimant testified: “Isaac Futch was my stepfather. . . These cattle'belonged to my mother. She got them from her father’s estate. Isaac Futch was in possession of them when he died. My mother left him in possession when she died, and I let him remain in .such possession. She has been dead about eighteen or twenty years. I have one sister, Nicey Williams. Isaac Futch was in possession from before my mother’s death till he died about two years ago. ITe returned them and marked them as his own, and when he sold beeves would buy others in place of them. I am married and have not lived with Futch since my mother died. I am about forty-two years old.” Frank Sheppard, introduced by claimant, testified: “I know that Isaac Futch sold a red cow that his first wife got froni her fathér’s estate and bought another one in its place. He told me *10. that he raised eleven head from that cow.” A few weeks before he died he “told me that there were eleven head of cattle at his place that descended from the white-faced black cow. Mary M'oten’s mother gave her the red cow which was traded and replaced by the' black cow with white face.”

*9Fish, C. J.

The verdict was not authorized by the evidence; and therefore the court erred in overruling the motion for a new trial, wherein this ground was alleged.

*Judgment reversed.*

*Beck, J., absent. The other Justices concur.*

*10Stephen Martin testified, in behalf of claimant; “I bought a red cow from Isaac Futch in the lifetime of his first wife, and he bought one in the place of it from- Frank Sheppard, a white-faced black cow from which these cattle in dispute descended. I don’t know anything about paying for the cows.”

Jesse Futch, introduced by plaintiff, testified: “I know the cattle in question; they belonged to Isaac Futch in his lifetime. He bought one of the original cows from which these were raised with money that I loaned him. He had been in possession about eighteen or twenty years and marked them in his own mark, and when he sold beeves he used the money for himself, and I never knew of any one claiming them except him. Mary Moten came to 'me soon after he died and asked me if these cattle didn’t come from that [which] belonged to her mother, and I told her they did not, and she said, ‘That lets me out of it.’ I know the cattle that his first' wife got from her father’s estate. I know that the red cow did not raise a single calf. He sold the red cow to Stephen Martin and told me repeatedly that he had never been paid for her. This was the only cow that she got from her father’s estate.”

Ophelia Futch testified, in behalf of plaintiff: “I was Isaac Futch’s second wife and lived with him four years before he died. He was in possession of these cattle, marked them in his own mark, 'and used them for himself; no one ever claimed them but him.”

*Ben A. Way,*for plaintiff in error.

*Donald Fraser*and *8. B. Brewton,*contra.