(After stating the foregoing facts.) The original motion for a new trial contains the usual general grounds. The first ground of the amendment to the motion consists merely of a complaint that the verdict is contrary to the evidence, though it sets out in some detail the grounds upon which this contention is based.
1. In the second special ground of the motion error is assigned upon the following charge of the court to the jury: “These are the pleas of the defendant in the case.” This is criticised upon the ground that it is prejudicial to the defendant, and limits the defense set up, etc. Manifestly such an exception is without merit. The portion of the charge excepted to states no proposition of law, and is without meaning, disconnected as it is from the other portions of the charge referred to. And the next ground, complaining of the charge that “If he does not, it would be good, and the plaintiff would be entitled to recover,” is without merit for the same reason.
Again, error is assigned upon the following charge: “If there would be any litigation over the estate, that would mean and could only mean litigation against the estate of J. L. Fincher by which the value of the estate was reduced so as to reduce the interest or distributive share of Mrs. Wilson, etc.” The “etc.” represents the balance of a sentence which it was necessary to have stated in order to fairly state the complete proposition of law as it was actually submitted by the court in his instructions; and consequently this assignment of error raises no question for determination.
2. The remaining excerpt from the charge criticised is not entirely accurate; but the verdict will not be set aside on that ground, in view of the evidence in the case.
3. The evidence authorized, if it did not demand, the verdict. The defendant does not deny executing the note. The note was given to the sister, who was not indebted to the estate, for the purpose of making her share of the distribution equal to that received by the others. The maker of the note was indebted to the estate about $700 or $800. If the notes which the plaintiff claimed should have been turned over to him had not actually been turned over to him, it was through no fault of the sister to whom this note was' given, and there was no burden resting upon her to take steps to