Citizens & Southern National Bank v. Joseph , 181 Ga. 240 ( 1935 )

Beck, Presiding Justice.

After the former decision in this case was rendered on July 11, 1935, reversing the judgment of the court below, the defendants in error filed a motion for rehearing, and moved that that judgment be set aside and vacated. In the decision referred to it was stated that it was clearly inferable from the petition that the provision in the will for the annuity, if paid in full, would prevent a payment of all or a'part of the debt due to creditors of the estate. In making this statement the court overlooked the allegation in paragraph 15 of the petition that “the estate [of Henry McAlpin, deceased, whose will is under construction] is not insolvent.” In view of that allegation and the other facts in the case, this court was not authorized to hold that the estate of McAlpin was insolvent; and consequently the former judgment of this court reversing the court below for overruling the general demurrer is vacated and set aside, and the judgment of the court below is

Affirmed.

All the Justices concur, except Atkinson and Gilbert, JJ., disqualified.