
    James F. Deupree et al., executors, plaintiffs in error, vs. Lucy Y. Deupree et al., caveators, defendants in error.
    (McCay, Justice, did not preside upon the hearing of the following motion.)
    1. Where one of the executors of a will to which a caveat has been filed married the sister of the wife of one of the Judges of the Supreme Court, said Judge is not disqualified from presiding by reason of relationship by affinity to said executor, upon the trial of said cause before the Supreme Court. (R.)
    2. The executor having renounced in writing as executor of the will to the Ordinary, which renunciation had been entered of record before qualification as executor and during the pendency of a caveat to the probate of said will, such renunciation was binding on the executor, and the Ordinary was the proper officer to determine whether he had any of the assets of the estate in his hands, not accounted for at the time of such renunciation. (R.)
    3. The legal, presumption is, that the Ordinary performed his duty in regard to the protection of the assets of the estate before accepting the renunciation of one of the executors nominated in the will. (R.)
    Relationship to disqualify Judge. Renunciation by executor. Before the Supreme Court of Georgia. January Term, 1872.
    When this case was called in the Supreme Court, counsel for plaintiffs in error objected to Justice McCay’s refusing to preside, on the ground that Thomas B. Moss, executor, one of the plaintiffs in error, had married the sister of his wife, and tendered to the Court the renunciation of said Moss of the trust conferred upon him by his appointment as executor, duly certified to by the Ordinary of Oglethorpe county. The Court, after taking the matter under consideration, rendered the following decision.
    Linton Stephens; Peoples & Stewart; Reed & Morton, for the objection.
    Robert Toombs; J. D. Matthews, contra.
    
   Warner, Chief Justice.

When it appeared that Moss, one of the executors of Deupree, married the sister of the wife of Judge McCay: Held, that the Judge was not related to Moss by affinity, so as to prevent him from presiding in the case, under the provisions of the 193d section of the Code. Held, also, that Moss having renounced as executor of the will, to the Ordinary, in writing, which renunciation had been entered on his records, before qualification as executor, and during the pendency of a caveat against the probate of the will, that such renunciation was binding on the executor, and that the Ordinary was the proper officer to determine whether he had any of the assets of the estate in his hands not accounted for at the time of his renunciation, it being the legal presumption that the Ordinary performed his duty in regard to that matter, for the protection of the estate, before accepting his renunciation as one of the nominated executors of the will.  