I dissent from the ruling of the majority of the court in division 2 of the opinion, which reverses the judgment of the trial court on account of an excerpt from the judge's charge. I have carefully read the entire charge of the court, and do not think the portion of the charge there dealt with was harmful to the plaintiff. In fact, the charge fully and fairly submitted the issues to the jury, and I do not think any portion thereof could properly be construed as harmful to the plaintiff; and especially is *Page 8 this true when the charge is considered as a whole. The suit was on a note against the two defendants as executors. They pleaded that the note was a forgery, that it was not executed by the decedent, and that the estate had been administered. By amendment they alleged: "That the entire estate of the said J. M. Clarkson consisted of $4000 collected on life-insurance policies. Out of this amount debts entitled to payment prior to the claim sued upon were as follows: funeral bill $190; tombstone $205; ordinary's cost $10.40. And the balance of the estate was paid to beneficiaries named in the last will and testament of said J. M. Clarkson and in accordance with the terms of the said will." So it will be seen from the pleadings of the defendants that the entire estate consisted of only $4000, out of which three items, funeral bill $190, tombstone $205, and ordinary's cost $10.40, making a total of $405.40, were "entitled to payment prior to the claim sued upon." This was conceded by the plaintiff. The real issue in the case was whether the note sued on was a valid one, or whether it was a forgery.
The charge of the court immediately before and connected with the excerpt complained of was as follows: "If you find from the evidence in this case, gentlemen, that the note sued on was signed by J. M. Clarkson during his lifetime, . . then I charge you, gentlemen, that the plaintiff would be entitled to recover. It would be immaterial, so far as the issues of this case are concerned, in the event you should find that the debt is a valid debt, as to what disposition of the estate may have been made by the executors. Should you find, as stated, that the note was signed by J. M. Clarkson, and was based upon a valuable consideration, and the law presumes a valuable consideration between J. M. Clarkson, now deceased, whose estate is represented by the defendants, and J. A. Clarkson, the plaintiff in this case, then I charge you that you would find a verdict for the plaintiff for the principal and interest in this case, notwithstanding that it might subject the executors to some penalty or impose some burden upon them by reason of any acts of theirs. Whether they have distributed the estate or not would not and should not affect you as to arriving at the truth of the transaction as to whether or not J. M. Clarkson did execute and deliver the note sued on in this case." The excerpt complained of was as follows: "Certain evidence has gone in before you, gentlemen, *Page 9 as to the value of the estate, and what constituted the estate of J. M. Clarkson during his lifetime. I believe the undisputed evidence in this case is that the estate consisted of some four thousand dollars to be administered by the executors named in the will, and that was the amount of the estate left by him for distribution under the will and as provided by law. I charge you that this evidence is permitted to go to you for the purpose of supporting the plea filed by the defendants, the executors, as set forth in their amendment, by which they seek to limit the amount of the recovery in the case to the worth of the estate, after the payment from the funds of the estate of certain items, funeral expenses, tombstone, and the cost of the probate of the will, and such legal claims against the estate as may have been in existence at the time of the death of the testator, J. M. Clarkson; and I charge you in this case that the amount of the note sued on in this case has nothing whatsoever to do with the plaintiff's right, if he has a right to recover, and should not be considered by this jury in arriving at his right to recover. The fact that the amount due to the plaintiff in this case, if you should find that he is due anything, might cover the entire estate after the payment of the priorities and all claims against the estate should have no influence over the jury in arriving at a verdict; and if the plaintiff is entitled to recover, it is your duty to return a verdict in favor of the plaintiff in this case for the amount you should find he is entitled to recover, notwithstanding the fact that the amount of the verdict might equal or exceed the value of the entire estate after the payment of the priorities is deducted. If you should find from the evidence in this case that the note sued on, with interest, with the credit thereon, was executed by the decedent, J. M. Clarkson, it is your duty to return a verdict for the plaintiff in this case, irrespective of the fact that the amount might equal or exceed the value of the estate, after deducting the priorities or legal claims against the estate. The court charges you that whatever legal claims may have been disclosed to you by the evidence in this case to exist against the estate of the decedent at the time of his death would be a prior charge against the estate, should you find under the rules I give you in charge that the plaintiff is entitled to recover." Immediately after and connected with the excerpt complained of, the charge continued: "In the event the amount of the recovery exceeded the net amount of the estate *Page 10 after deducting the priorities, your verdict would not exceed the net amount of the estate after making such deductions; and should you find that the obligation is a valid obligation, and that the note was executed by J. M. Clarkson during his lifetime to the plaintiff in this case, then I charge you the plaintiff would be entitled to recover, and in fixing the amount of recovery, gentlemen, you would fix whatever amount you might find to be due as represented by the note, . . the judgment to be made from the net amount of the estate after deducting the priorities." The court told the jury in his charge a number of times that if they should determine that the note sued on was a valid note, that is, signed by J. M. Clarkson. then the plaintiff would be entitled to recover, and that their verdict would be in favor of the plaintiff for the amount of the note, principal and interest, the judgment to be made out of the value of the estate, less the priorities. It is true that he did use in this connection a few times the expression "legal claims;" but he told the jury different times that if they should determine that the note was valid their finding should be in favor of the plaintiff, irrespective of whether the defendants had paid out or distributed the funds of the estate. In my opinion the plaintiff shows no harmful error, and the judgment of the trial court should be affirmed.