This was a claim to a house and lot in Sandersville, as her homestead, by Mrs Brown. The property was levied upon by the plaintiff in error on a judgment rendered on a debt created since 1868. Mrs. Brown applied for and obtained the homestead after the death of her husband, he leaving two minor children and herself as his widow. The children were of age at the date of the levy! On the charge of the court the jury found for the claim! ant, and the plaintiff having been denied a new trial, excepted.
Four errors are assigned : First, that the court erred in admitting the homestead as evidence.before the jury because of defects therein; secondly, because the widow *64was not a beneficiary of the homestead trust, but merely, as head of the family, the trustee for her two minor children, and with their majority in age the homestead estate terminated; thirdly, because the court admitted parol proof that the excess over $2000.00 had been paid the administrator; and fourthly, on account of newly discovered evidence.
1. The homestead papers were properly admitted in evidence. The order to the county surveyor need not have appeared on the face of the homestead papers. It was enough that it appeared on the minutes. It is presumed that this officer did all required by law before he granted the homestead. 47 Ga., 195. This applied as well (to notice in the absence of proof that there was none.
2. The homestead papers show that the widow as “ the head of a family consisting of herself and two minor chib dren,” applied for and had the homestead set apart. So she was a beneficiary for whom the estate was set apart, as well as the quasi trustee or head of the family in whom the legal title was vested as long as the beneficiaries existed as such. The children so existed until they arrived of age; the widow as long' as she remained a widow. Therefore there is no error in the charges and refusals to charge on matters concerning this point.
3. Nor was there error in admitting parol evidence to prove- that the excess of value over $2,000.00 for homestead was paid by the wido.w to the administrator. His returns were not better evidence than would be a receipt from him or any other admission by him. He was the person to whom the money was properly payable, where the widow applied for homestead. Virtute officii, he was the receiver in such a case to distribute that excess to the creditors and heirs. This application was made in 1872, prior to the act of 1876, which repealed sections 2014 and 2015 of the Code of 1873.' This application was made under the act of 1870, p. 71, codified in Code of 1873, section 2014.
*654. There is nothing in the motion on the ground of newly discovered evidence- If the plaintiff wished to put in the returns, he should have examined them before trial. Naturally he would look to the returns to see if the excess in value over $2,000 had been paid to the administrator and returned by him, and it is in these returns that plaintiff has found newly discovered evidence. It is laches not to have examined them and discovered what was in them before trial. Besides, the object was to impeach the parol evidence of the administrator, and to do that' a new trial is not granted on account of newly discovered evidence.
Judgment affirmed.