1. The chief contest in this case was to obtain a decree subjecting the land which had belonged to the testator, and was sold by the executor in 1866, to be sold again for the payment of complainants’ legacy. There was no issue made that the land did not sell for its value, or that there was actual fraud committed by the executor and the present owners of the land, which would vitiate the sale. The point raised is, that the executor and his sister, Mrs. Flannegan, as residuary legatees, divided the land between them without the legacy of $3000 00 to complainants having been paid. The bill charges that this was done after the debts of the estate had been paid, and that such a division was a devastavit on the part of the executor. The answer sets up that the executor and his sister only took the property under a special agreement that it was a temporary arrangement, and that it was to be held without the title passing, subject to the debts against the estate and the legacy of complainants, and until a suitable time should arrive when a sale could be effected for good money. This was in the latter part of 1863, and reasons are given why no sale was then had, to-wit: the condition of the country from the then existing war and the great depreciation of the only currency in circulation. The land was so held until after the war, and was sold in 1866, and by the returns of the executor the proceeds of the sale went to the payment of the debts, except the amount found in favor of complain-*346ants. If there were outstanding debts, they had a priority over the claim of complainants for their legacy; and if the action of the executor and Mrs. Flannegan in the division, was illegal, the creditors did not lose their right to have their debts paid or lose their priority over legacies. They could have forced the very sale that was made, and there is no reason why the executor should not do that, which by law he could have been compelled to do, or which is practically the same thing, do that which the Creditors could have effected by obtaining judgments and enforcing a sale under them. In any event, the debts must have been paid. The jury found that these debts consumed a large portion of what the land brought, and there was no motion for a new trial on the ground that the verdict was wrong on that point. So it must be taken as an established fact that the land was sold and the proceeds applied to the payment of debts. If so, it cannot be subjected to a resale.
2. The jury rendered a verdict for complainants against the executor for $690 50, with interest. It was urged that the executor and Mrs. Flannegan were liable for the rent of the land and hire of the negroes for 1864 and the rent for 1865 ..and'1866. This may have been true. Rut no motion was made for a new trial. There was no charge of the court excepted to as preventing the jury from making allowance in .the verdict for the hire and rent, nor any exception to a refusal to charge a request on that point, and we cannot inquire into any alleged error in the verdict for not including the same; See McRae vs. Adams, 36 Georgia, 442.
3. The answers of the defendants, so far as they go to explain the arrangement made for the disposition of the property in November, 1863, are responsive to the charge in the bill on that matter’, and to that extent were evidence. Any explanation of an admission made, or fact necessarily connected with it, is part of the response : Code, section 3106; 14 Georgia, 429; 10 Ibid., 208. The answer on this point comes within the rule. It is true there were no interrogatories with numbers put in the bill; but there was no *347■waiver of discovery. A mere omission to insert questions with numbers to them, as set forth in section 4176, Code, does not'deprive a defendant of the benefit of his answer §o far as it is responsive to the charges in the bill. He may confine his discovery to those points to which special interrogatories are placed in the bill, (Code, section 3104,) but that is a privilege, and no right is lost thereby. If a complainant wishes to avoid making the answer of the defendant evidence, he must, under Code, section 3101, waive discovery.
4. Besides the very broad provisions of section 3479, Code, allowing amendments, it is specially declared in Code, section 4195, that “a sworn answer is subject to amendment at any time, by leave of the court, as other pleadings; but an admission made in such answer shall always be evidence, when offered by the other party.” It is not necessary that an affidavit of any sort should be made by a defendant for the purpose of amending an answer. There might be cases in which the court, in its discretion, might be authorized to require a statement under oath of the facts connected with making the amendment, before leave would be granted for allowing it to be made. Indeed, this was the general rule as to permitting amendments to sworn answers : Martin vs. Atkinson, 5 Georgia, 390; Cary vs. Ector, 7 Ibid., 99; Daniels’ Pleadings and Practice, 914. But this was before the adoption of the Code, which has put such amendments on the same footing as amendments to other pleadings: Code, sections 3479, 4195. Of course, any answer, whether it be the original or an amended answer, must be sworn to, before it can be used as' evidence.
5. Complainants introduced several witnesses before the jury; the defendants offered none. The court held that the defendants was entitled to the conclusion in the argument to the jury. There was no error in this. Section 4207, Code, declares that “the rules of evidence shall be the same as in trials at law, and the rules of practice as to continuance, and in the conduct of the case before the jury, except that when a complainant relies solely on the defendant’s answer, he shall be *348entitled to open and conclude the cause.” Complainants did not rely solely on defendants’ answers, but introduced other-evidence, and so far as we can determine from the record, all the testimony of any kind which was before the jury was presented by them. If so, the conclusion was properly awarded to defendants.
Judgment affirmed.