delivered tbe following opinion:

It is claimed tbe declaration should aver a judicial declaration of tbe plaintiff as heir ah intestato; that thus only has be right of title. This is tbe ground of tbe demurrer. Tbe plaintiff contends such declaration is nob necessary to the right of tbe heir to sue; but even if so, it is a matter of evidence; need not be averred in pleading: and it is only necessary to aver be is tbe heir.

It would seem that by tbe local procedure a judge may, in bis discretion, make a judicial designation of heirship ah in-*182iestabo, or leave tbe parties to an ordinary action. Whatever this provision and various others relative thereto may mean, it is averred that the plaintiff is the heir of the party to whom the debt was owing; and as such heir, having become entitled to half of it, the defendant promised to pay it to him. Under the local law the heir has the right to collect a debt coming to him by heirship from his ancestor. The averments of the declaration are to be taken as true upon demurrer; and it is overruled.