" First. —That Salina P. Hall died in 1844 testate, leaving as her will the original of which the paper annexed is a true copy, marked ' Exhibit A.'
" Second. —That Susan P. Howard qualified as executrix under said will, and letters testamentary were granted to her at the July term, 1845, of the inferior court of Bibb county.
"Third. —That the Macon property, described in said will as the residence of testatrix, was sold, and the proceeds thereof expended in the purchase of the property in dispute from Robert Orr, by deed, a copy of which is hereto attached, marked ' Exhibit B.'
" Fourth. —That Robert Orr owned said land under valid title, and was in possession on February 11th, 1851, the date of said deed.
" Fifth. —That Susan P. Howard died intestate in January, 1879.
" Sixth. —That the lessors of plaintiffs are the children and descendants of children of Susan P. Howard.
" Seventh. —Salina P. Hall lived on the property in Macon prior to and at the time of her death. Susan P. Howard, her daughter, lived there after her death about five years. The property was sold after that to W. W. Cherry. Two thousand dollars were realized from it. The proceeds arising from the sale in Bibb county were immediately reinvested in the property in dispute by John W. Howard, said property consisting of about 200 acres, with improvements, bought from Orr, who gave John W. Howard a deed therefor, as trustee for Susan P. Howard, and said deed was recorded in Fulton county. Susan P. Howard removed to it, and resided on it for about eight years. The deed of Orr to Susan P. Howard, executrix, and John W. Howard, as trustee, was executed with the knowledge and consent of John W. Howard, he having been consulted about the sale. John W. Howard himself had the deed recorded.
" What is contained above in this 7th head is taken from the interrogatories of John W. Howard, and is to be taken with all the other evidence in the case.
" Susan P. Howard was a widow at the death of Mrs. Salina P. Hall, and remained a widow until the death of Mrs. Susan P. Howard, having no issue born to her after the death of Mrs. Salina P. Hall.
" Eighth. —That the property in dispute, to-wit. All of land lot 151 in the 14th district of originally Henry now Fulton county, (except fifty acres, being the northeast quarter thereof, now in possession of Shehane) and 81/2 acres of land lot No. 152 in said district, in the northeast corner of said land lot, was sold at sheriff's sale in May, 1860, under various fi fas. against Susan P. Howard individually, and was knocked off to Thos. A. Kennedy at the price of seven hundred and fifty dollars, and who took sheriff's deed thereto.
" Ninth. —That the present tenants in possession, defendants hereto, hold said land under a chain of title, for valuable consideration, from said Thos. A. Kennedy.
" Tenth. —The defendants, or their privies in estate, have been in possession under said chain of title ever since said sheriffs sale to Kennedy, to-wit: since May, 1860, said possession being uninterrupted. Thos. A. Kennedy sold and conveyed the land in dispute to W. P. Orme, on the ——day of——18—, and said Orme, for the consideration of $5,000.00, sold and conveyed same in fee simple to Samuel J. Pinkerton, Philander P. Pease and Lucius B. Davis, on the 18th of December, 1862, and the defendants hold under latter by regular conveyances, to present time. All of said conveyances, except sheriff\'s deed to Kennedy and Kennedy\'s deed to Orme, were duly recorded. These two last mentioned deeds were recorded, whether in time or not is not known, as the records thereof and the original deeds are lost, but it is probable that the sheriffs deed to Kennedy was recorded in 1862, and not in time.
"Eleventh. —That the mesne profits since the death of Susan P. Howard, issuing out of the several portions of the premises in dispute, held by the several tenants in possession, defendant to these suits, over and above all improvements placed thereon during said period, are as follows, to-wit:
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|As to Miles G. Dobbins |$66 66^2/[3]|
|----------------------------|------------|
|As to Wm. M. McLean |66 66^2/[3] |
|----------------------------|------------|
|As to J as. H. Porter et al.|66 66^2/[3] |
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"Twelfth. —The fi. fa.. hereto annexed and marked exhibit 'C, ' was levied on said property, and a claim interposed, as shown by said exhibit 'C.'; the lessors of the plaintiff reserving all objection as to the admissibility, and effect of said testimony and its completeness as affecting the rights of said lessors.
" Thirteenth. —The fi. fa. hereto annexed and marked exhibit 'D, ' was levied thereon, and a claim interposed, as shown by said exhibit 'D, ' and a verdict thereon, as shown by exhibit 'E.' The lessors of the plaintiff reserve all objections as to the admissibility and effect ofsaid testimony, and its completeness as affecting the rights of said lessors."
"Georgia—Bibb County:
"Know all men by these presents that I, Salina P. Hall, being of an advanced age and in feeble health, but of sound and disposing mind, do make this my last will and testament.
"It is my will and desire that at my death all of my property, both real and personal, after the payment of my just debts, should go into the possession of my daughter, Susan P. Howard, and be for her sole use and benefit for and during her life, but not in any manner to be subject to her debts, and at her death to be divided among my grandchildren, the children of the said Susan P. Howard, in such manner and proportion as she, the said Susan P. Howard, may think most equitable and just at her death, taking into consideration their condition and necessities. Of this she is to be the sole judge. I constitute and appoint my grandson, John W. Howard, trustee of my daughter, Susan P. Howard, with the request and instruction that the property given to her during her life shall be kept and held for the sole use and benefit of her and her children, and not in any manner to be subject to be taken, sold or disposed of for her debts.
" I give unto my granddaughter, Isabella A. Howard, a negro woman, Caroline, and her issue. Should the said Isabella A. die without issue, then the property which I have specifically bequeathed to her be given and divided as my daughter, Susan P. Howard, may direct, to my other grandchildren. I constitute and appoint my daughter, Susan P. Howard, my executrix of this my last will and testament. With regard to the place at which I now live, it is my wish that my daughter should live here at my death; if, however, her inclination or interest should require, she can sell the same, but the money arising from the sale must be reinvested in a place elsewhere for the sole use and benefit of herself and children, to be disposed of at her death to my grandchildren in such manner and proportion as she may think best.
" In witness whereof I have hereunto set my hand and affixed my seal, this 4th day of March, in the year of our Lord one thousand eight hundred and forty-four.
Salina P. Hall, [seal.】"
" Signed, sealed, etc., in the presence of witnesses:
C. Vaughn,
Jos. Hunt,
James B. Payne."
