This cause comes on to be heard on the petitions for rehearing of Roe Wells, Jr., Nelle Wells, Rena Rose Goodman, and Elsie King Wilcox. The petitions of Roe Wells, Jr., Nelle Wells, and Rena Rose Goodman have been considered and the *Page 243 record as to them has been re-examined. We find no error in our opinion and judgment of July 26, 1946, so each of said petitions for rehearing is hereby denied.
As to the petition of Elsie King Wilcox, it now appears that there has been a material depreciation in the value of the assets of the estate to be distributed and that, if the claims of Roe Wells, Jr., and the claim of Olga Menn, individually and as administratrix, are paid in full, Elsie King Wilcox will, on account of the priority in distribution, adjudged in our main opinion, be required to bear an undue portion of the burden of administration and may in turn receive a materially reduced part of the legacy awarded her. The record reveals, however, that as to equities, right to contest, and identity, in other respects, that entitle her to participate in the estate, the position of Elsie King Wilcox is no different from that of the other legatees held to have a prior right of payment from the assets.
In the light of these facts, the petition of Elsie King Wilcox is hereby granted, and our judgment of July 26, 1946, is amended so as to authorize the court below to consider the foregoing and if on examination he finds that the assets of the estate have in fact depreciated in value, so that the claim of Roe Wells, Jr., the claim of Olga Menn, individually and as administratrix, and the claim of Elsie King Wilcox cannot be paid in full after the costs of administration are paid, then in that event Roe Wells, Jr., Olga Menn and Elsie King Wilcox shall participate in the distribution of the residue in the proportion that the amount awarded to each bears to the amount available for distribution after deducting the cost of administration, and the Chancellor shall so order.
In all other respects our former judgment and finding is re-affirmed on rehearing.
It is so ordered.
CHAPMAN, C. J., TERRELL, BROWN, BUFORD, THOMAS and ADAMS, JJ., concur.