delivered the opinion of the court.

Appellee, administrator of the estate of John R. Robinson, deceased, filed a petition in the chancery court, asking’ for authority to sell certain lands belonging to the estate for the purposes of securing funds to pay debts. The petition did not aver that there was no personal property available for the payment of debts.

■ J. R. Robinson, appellant, an heir at law of deceased, demurred to the petition, and assigned the following grounds: “(1) Because the said bill of complaint fails to allege that the six acres of land and dwelling house was not the homestead of the said deceased, and thereby exempt property. (2) Because the said bill of complaint fails to allege that the said deceased had a homestead other than the property contained in said bill of complaint and prayed to be ordered sold. (3) And for other causes to be shown on the hearing hereof.”

The court overruled this demurrer, and appellant answered the petition, alleging, among other things, that the land in question was the homestead of deceased, and therefore exempt property, and afterwards made his answer a cross-bill, by further alleging that the land was conveyed to him by the deceased, but by error of the scrivener the deed was not so written as to carry out. the purpose of the grantor, and praying for a reformation of the deed, which relief, if granted, would fix the title in appellant, and the land would, therefore, not be a part of the estate of deceased.

Proof was taken upon the mistake in the deed, which tended to establish the contention of appellant. By agreement, the whole matter was submitted to the chancellor upon the pleadings and the proof concerning the alleged mistake in the deed. No proof was taken as te whether the land in controversy was the homestead of deceased at the time of his death, but there are certain-scraps of evidence tending inferentially to prove that the deceased was living upon the land, with a part of his-family, prior to and at the time of his death.

*739The chancellor entered a decree condemning the land to sale for the payment of the debts, and appointed a commissioner to make and report the sale. Except in this general way, no order was made disposing of the cross-complaint praying for a reformation of the deed.

Section 574, Code 1906, provides that in matters testamentary and administrative no answer shall be required to a petition of any sort, “and such petition or application shall not be taken as confessed; . . . but every petition, application, or account shall be supported by the proper evidence,” etc. The petition and other pleadings raised several questions of fact. Nevertheless no evidence was taken in support of the petition; the chancellor seeming to proceed upon the theory that the burden of proof was upon respondent to overthrow the averments of the petition, and that, in the absence of proof, the averments must be taken as true.

We think section 574 of the Code fixes this burden upon the petitioner, and it was incumbent upon the administrator to show by proper evidence that the land was an asset of the' estate of his decedent, and was such an asset as the court then could order sold for the payment of debts.

Reversed and remanded.