(After stating the foregoing facts.) Elmore Jones was sworn as a witness for the plaintiff. On cross-examination it was elicited by the defendant’s counsel that Delia Johnson, after the death of Isaac, had made her will and that the witness and his sisters were named as devisees therein. Counsel then asked the witness to state the condition of Delia Johnson on the day of the execution of the will. Whereupon the court ruled that counsel might show the interest of the witness, and might, therefore, show that the witness was named as a devisee or legatee in the will of Delia Johnson, but that the condition of Delia Johnson on the day of the execution of the will was irrelevant. This ruling is assigned as error in the motion for new trial. The assignment is without merit. It was relevant to show that the plaintiff, Delia Johnson, had named Elmore Jones, the witness, as a devisee or legatee in her will; but whether the plaintiff was of sound and disposing mind and memory at the time of the execution of the will is immaterial.

During the progress of the trial, and when practically all the evidence in the case had been introduced, the court made the following ruling: “I hold that heirs at law of the deceased, Isaac Johnson, who testified to transactions or communications with the deceased, Isaac Johnson, are incompetent witnesses to testify to such transactions or communications had with him, on the ground that should it be found there was no marriage between the deceased and Isaac Johnson, and that this deed should be set aside, they would then become directly interested in the result of this trial, and they are incompetent witnesses to testify to transactions or communications had with the deceased; and I rule out the testimony of the sisters of the deceased who have testified to transactions and communications had with Isaac Johnson. That ruling would also apply to Lula Oglesby, the niece, her mother being dead, or to any witness who is an heir at law. . . I leave in the statement of Delia Johnson, to which the witnesses have testified, of course.” *338. This ruling is assigned as error, “because marriage or the want of marriage may be proven by reputation in the family, and these witnesses, being related to Isaac Johnson, were competent to testify on that-point; because the rule as to tire admission of testimony concerning statements of the deceased person prevents the party opposed to the administrator from testifying to such communication, but allows witnesses for the administrator to testify to such 'communications; and the testimony excluded by this ruling, being in favor of the legal representative of the deceased, was admissible.” Several relatives of Isaac Johnson testified for the defendant. The alleged transactions or communications with the deceased are not set out in the motion for new trial; and since the court excluded certain transactions or communications from the evidence, presumably these communications- are not to be found in the brief of evidence. It affirmatively appears, however, from an examination of the approved brief of evidence that the relatives of Isaac Johnson, sworn as witnesses for the defendant, were allowed to testify to the reputation in the family, and did testify that Isaac and Delia were never married -and were not man and wife. Inasmuch as the excluded testimony is not set forth in the motion for new trial either literally or in substance, or attached thereto as an exhibit, the assignment of error can not be considered.

After the conclusion of the testimony, the court retired the jury and ruled as follows: “I will eliminate the land, and I submit to the jury the question as to the personal property.” This ruling is assigned as error. There was no evidence to authorize a finding that the deed was procured by fraud, or that the grantor did not have sufficient mental capacity to execute it. The court, therefore, properly withdrew from the consideration of the jury the issue as to the validity of the deed.

The court charged the jury as follows: “If you should find that Delia Johnson and Isaac Johnson were living together prior to March 9th or on the 9th day of March, 1866, as husband and wife, that it would be immaterial whether they were married by any form of lawn or not. The law would not require, after March 9th, 1866, that they should enter into a marriage ceremony or contract whatever, in order to constitute them husband and wife.” In one ground of the motion for new trial this charge is assigned as error, because “it is contrary to law,” and because “March 9th, 1866, and *339no other day or date, is the time fixed by law for the establishment of marriage between persons of color. If persons of color who lived together as husband and wife prior to March 9, 1866, saw fit before that day to abandon such relationship, the law would not adjudge them husband and wife; and if they did abandon such relationship, or either of them did so, before March 9, 1886, the law would not allow them to renew such relationship after that date without a new contract.” By reference to the entire charge of the court it appears that the court instructed the jury that “persons of color, colored people, living together on the 9th day of March, 1866, who were living then as husband and wife, whether there has been a ceremony or not, sustain that legal relation to each other.” In immediate connection therewith follows the excerpt from the charge'to which exception is taken. It is manifest, therefore, that the portion of the charge assigned as error was neither misleading nor harmful. It is apparent that the court construed the law as the plaintiff in error now construes it, and the jury must have so understood the charge.

The evidence authorized the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.