ON REHEARING.
Upon the petition for a rehearing filed by the appellants, executors of James T. Patterson, deceased, the following order was entered:
“On mature consideration of the petition of the appellants to set aside the decree pronounced herein on the' 22nd day of December, 1927, and grant a rehearing thereof, the prayer of the petition is granted. The .rehearing and reargument will be confined to one question solely. That question is one of the matters upon which the petition is based, viz, the holding by the court, in the opinion handed down, that after the sale Mrs. Crutchfield should be refunded out of the corpus of the estate the amount she paid in taxes assessed against the unproductive portion of the trust property before it was transferred to Wallerstein.”
*617The question referred to has been reargued and submitted to the court. In its opinion the court held that Mrs. Crutchfield should be refunded, out of the corpus of the estate, the amount she paid in taxes assessed against the unproductive portion of the trust property before it was transferred to Wallerstein. The reasons for this holding are given in the opinion, and the court explained why in the instant case the general rule, that the burden of paying the taxes on the corpus of the property falls upon a life tenant, did not apply to the provision made for Mrs. Crutchfield. We are still of opinion that, upon all the facts appearing to the court here from the record in the case, the trustee and Mrs. Crutchfield would have a right to ask that this be done, and the equities of the case require that such request be complied with. However, it is insisted by the appellants, and also on behalf of the infant remaindermen, that this question was not raised in the lower court, and no ruling has been made in the trial court in this respect adverse to the appellees or otherwise. Under these circumstances the court now modifies its opinion to the extent that it shall not be taken as passing finally upon the matter referred to. And the final adjudication upon the question, whether Mrs. Crutchfield should be refunded out of the corpus of the trust estate the amount she paid in taxes assessed against the unproductive portion of the trust property before it was transferred to Wallerstein, is left to the determination of the trial court, when the court comes to deal with the proceeds of the sale after a sale has been had. In all other respects the opinion of the court will remain unaltered.
Decree affirmed.