On Motion for Behearing.
[2] It is insisted in the motion that the conclusion reached by us that there was nothing in the record indicating an intention on the part of Gardner that the bequest made by him to Mrs. Van Orden should not operate as a payment cf his debt to her is erroneous; and in support of the contention it is pointed out that Gardner and Mrs. Van Orden were cousins and as children had grown up together; that he made bequests to other persons to whom he was neither related nor indebted; and that he left an estate more than sufficient to satisfy any debts he owed and all the special bequests he made. We have concluded that the contention should be sustained. We should have overruled all the assignments except the first, eighth, seventeenth, and nineteenth and those in which appellants complained of the action of the court in directing the jury to compute interest at the rate of 10 per cent, per annum on the amount of Gardner’s indebtedness to appellee and, sustaining the assignments excepted, should have reversed the judgment, but, instead of here rendering judgment in favor of appellants, should have remanded the cause for a new trial. To cure our error the motion will be granted and the judgment heretofore rendered by us will be set aside, except so far as it reversed the judgment of the court below, and the cause will be remanded for a new trial.