Of this inventory the executor shows a satisfactory disposition of the household and kitchen furniture, carriage and negroes, of the first notes of Carr, and of most of the other assets, except the $5,000 00 note, reduced to $3,500 00, and J. T. Henderson's note and some smaller items; that is, it is unnecessary for this case to make a point upon them, enough being left for our conclusion on the propriety of the verdict. The following items of the will only are important for the adjudication of the case, viz: "I loan to my wife, during her natural life, $5,000 00; also, that my executor purchase for my wife a negro woman or girl, such as she may select, the same to be loaned to her her lifetime, the same to be purchased out of the proceeds of my property." "It is my will and desire that at the death of my wife the money loaned her, and the negro to be purchased by my executors, be sold and equally divided amongst all my children and my grand-daughter, Elderenda Brown." * * * The bill of Mrs. Ruth Henderson claimed that the sum of $5,000 00 and the value of the negro woman at the time of making said will, be paid over to her. This bill was answered by the executor, who admitted the item of the will as charged, the death of the testator, and that he himself qualified as executor, and possessed himself of the things set out in the foregoing inventory except the household and kitchen furniture, carriage and mules which were given absolutely to Mrs. Ruth Henderson; that a negro woman, such as she would have selected, was worth, in good money, about $800 00 or $900 00. The answer said nothing about the estate in remainder, but in reply to specific questions, admitted the facts set out in the bill, but disputed the amount of assets charged against him. On this bill and answer, the jury found a verdict for complainant for $7,279 40, and on this verdict a decree was en Lee vs. Chisholm et al. tered up, but signed by the solicitor of the complainant and not by the chancellor, dated March 29th, 1871. Afterwards, on the 23d of May, 1871, an injunction was sued out against the said Ruth Henderson restraining the collection of said decree which was proceeding to levy upon the individual property of the executor, on the ground that the same was illegally signed as aforesaid, and the bill prayed that the said decree, and proceedings on which it was founded, might be reviewed. This bill alleged that "he made no resistance and was not disposed to contest any matters with her," and that "he supposed her bill was simply an effort to set up and establish her claim to said legacies, against the estate of Henderson, and this he did not and does not now pretend to resist," and the whole bill of review shows he was for protecting himself, and not these remaindermen. To this bill a very long answer was filed in which she, Mrs. Henderson, set forth all her grievances, charging him with abundant assets to pay her debt, that he, the complainant, was sworn as a witness himself on a former trial, and on a cross-examination admitted that her son who had owed the testator some $2,200 00, had exchanged notes with him, whereby he had paid him some $1,800 00 and given his note for the balance, and that he had a judgment against Carr for $3,500 00, and yet refused to pay her a cent; that the complainant had married her daughter, but her daughter had died before her father, the testator, and this was the reason she believed he had treated her so badly. Upon the coming in of this answer at the September term, 1871, of the court, an order was passed revoking the former decree, and entering up another one for the same amount signed by the chancellor, and annulling the injunction because there was no equity in said bill except the illegal signing of the decree as aforesaid. On this last decree the money was paid by the executor to Mrs. Ruth Henderson. In his answer to the bill of the present complainants the executor admits the following available assets: $3,500 00 against B. F. Carr, with interest from 28th September, 1867; Lee vs. Chisholm et al. also $1,441 13, the difference between Henderson's and the executor's notes, paid him by Henderson; also $166 00, sale of thirty acres of land; also small note on R. J. Henderson for $32 00; also the value of Confederate money on the small note of this defendant, say $10 00, which, without computing interest, make the aggregate sum of $5,139 13; whereby he claimed in his answer that he paid Mrs. Ruth Henderson $376 62 more than all said available assets. At the January term, 1875, of this court this case was here before us; (see 54 Georgia Reports, 611;) it was then ruled by this court that "the testator did not intend that the principal of the money bequeathed to his widow during her life should be destroyed in the use of it by her, but, on the contrary, he intended that his children and grand-daughter should have it after her death, and to carry out that intention his executors were appointed to execute his will, and it was their duty so to execute it as to effect that intention by investing the money, paying the widow the interest thereof during her life, and at her death to divide it equally among his children and grand-daughter, as directed by testator's will;" and this case was so ruled on the authority of Thornton vs. Birch, 20 Georgia Reports, 793. The judgment of this court rendered in this case then, as contained in the remittitur transmitted to the court below, was "that the judgment of the court below be reversed on the ground that the court erred in deciding that it was the duty of the executor, under the will of the testator, to pay over to Ruth Henderson, his widow, the $5,000 00 loaned her in the 4th item of the will." The case comes back to us now with the additional facts contained in the record of the bill filed by Mrs. Ruth Henderson against the executor, and all the proceedings consequent thereon, and the final decree rendered on those proceedings, and the payment of the money to her by the executor under that decree. On the trial of that case the court charged the jury, 1st. "That if an executor sets up a decree against himself as a reason for a departure from the terms of the will, he must Lee vs. Chisholm et al. show that either the pleadings filed to obtain the decree were made to have the will construed, or that under the pleadings evidence as to the construction was submitted, and the decree rendered in effect construing the will, and directing the exector what to do under the will." 2d. "That in this case Lee must show that a construction of the will was asked for either by the bill or answer in the case of Ruth Hendrrson against himself, or that evidence as to its construction was submitted and passed upon by the court and jury, and that the decree is in effect a decree construing the will, and directing him what to do under the will." 3d. "That the bill filed by Ruth Henderson claimed $5,000 00, with interest. The answer of Lee did not contest her right to the $5,000 00, nor does the decree, in express terms, construe the will or direct the executor, but is simply a decree for so much money. Such a decree, rendered on such a bill and answer, will not protect him in a departure from the will unless he clearly shows that evidence as to the construction of the will, was submitted and passed upon at the time, and that the decree in effect is a decree construing the will; for the will, the law as to him, prevented his paying it over, and his admissions of her right to recover the corpus, and the decree on that admission will not protect him any more than a payment of the money without a decree." Error is assigned on each of these three charges; and also because the court refused to charge "that the judgment in favor of Ruth Henderson is for her interest under the will of Isaac P. Henderson, and is presumed to be for the correct sum and that presumption is conclusive on the executor and the legatees under that will, unless it be set aside for fraud;" and because the court erred in refusing to set aside the verdiet, which was for the complainants, and to grant a new trial on the foregoing assignments of error; and because the verdict was contrary to law and against the evidence. 1. We think that the two first items of the charge of the court, to which exception is taken, may be considered as arguments or reasons leading to the conclusion to which his mind came on the law applicable to the facts of this case as they Lee vs. Chisholm et al. appear in the pleadings and evidence disclosed in the record of the case of Ruth Henderson against the executor. If the court meant thereby to leave to the jury to draw their conclusions of law upon this record, he erred; but if he meant to explain the reasons on which his own judgment of the law, as set out in his third charge excepted to, was based, it was, perhaps, well enough. In any event, these charges did no harm, if he was right in the third charge wherein he ruled distinctly his view of the law applicable to the facts disclosed in that record. We consider the substance of that charge to be, that if the executor resisted the payment of the corpus of this estate on the ground that these remaindermen were entitled to it at the death of Mrs. Henderson, and in good faith and to the utmost of his ability, defended her suit against him for this corpus, and expressed a willingness to pay to her only the interest, then if constrained to part with the possession of the corpus by the decree of the court against his defense he would be protected; or if he insisted in his answer that such was the true intent and meaning of the will, then if overruled in this construction so set up by him in good faith, with the view to protect the remaindermen, he would be protected; and we understand him to say, in the third charge excepted to, that his answer, and all the pleadings and evidence, do not show that the will was construed, but show simply a decree for so much money, and that such a decree, rendered on such a bill, and with an answer filed by the executor, admitting the facts. alleged in the bill, will not protect the executor. We have scanned this bill and answer closely, and examined this whole record, and we think the conclusion arrived at by the court below is correct. The answer of the executor sets up no defense in behalf of these remaindermen; he nowhere asks for a construction of this will, nor does he pray that the fund may be secured to the remaindermen at the death of the lifetenant by her giving bond and security for its preservation; nor does he ask that he may invest it, paying the life-tenant the interest annually, and preserving the corpus himself for the remaindermen. His whole defense is grounded upon his |