delivered the opinion of the court.

Differing in opinion with the court on the third exception,1 the judgment is reversed. This court is of opinion, that it should have been left to the jury to determine from the evidence what amount of assets were in the hands of the executors of Richard Owings, applicable to the payment of JVathait H. Owings’ claim against said Richard Owings’ estate. To the extent of any assets found by the jury, applicable as aforesaid, James Owings had no right to recover in this case.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.: