Durham v. Williams

On Rehearing.

Further examination of the evidence in this case, as embodied in two transcripts; one of which only had not been submitted to us when we gave the matter our attention, and which has since been brought to our notice, induces us to alter our views, to some extent, favorably to the plaintiff.

The counsel for the plaintiff admits in his brief for a rehearing that the §1910 32 found in bank are part of the amount which Hollings-worth had obtained from the executor of his father shortly before his *974death; but he does not consider that it has the character of separate funds, as he deals with it as borrowed meney. We do not view the matter in the same light that the plaintiff does, but take it to be an advance on his share of inheritance. The executors could make no loan. We find that the whole. 14000 previously allowed should be reduced to $1650, which were actually paid out of said balance in bank to the contractor of the buildings on the lot in question.

The complaint that we allowed to the defendants five forty-eighths, accruing to the plaintiff, is not founded. The whole proceeds of sale of the property will be subjected to the satisfaction of the amounts invested in the community by Hollingsworth, whom the defendants now represent. The fallacy underlying it consists in the assumption that those amounts are to be satisfied only out of the share of Mrs. Hollingsworth, now owned by the plaintiff. If it were so, the complaint would be just and proper; but it is not so. The amounts are to be paid as well from that share as from that of the minors ; what shall thereafter remain will then have to be distributed pro rata, as indicated in our previous finding.

It is therefore ordered that the opinion and decree in this case be amended, so 'as to allow sixteen hundred and fifty dollars, $1650, in place of four thousand dollars, $4000, in addition to the twenty-two hundred and fifty dollars mentioned, and so that the total, recognized as due the defendant, be fixed at three thousand nine hundred dollars only, $3900; and that so modified the opinion and decree remain otherwise undisturbed, and that execution thereof follow.