Oh Application eor. Rehearing.
Bermudez, O. J.The only serious ground of complaint against the judgment previously rendered seems to be that, in the computation of the amount of the bond which the administrator is ordered to furnish, the court has not excluded from the inventory property therein inadvertently embraced as owned by the deceased, which had been judicially declared to belong to Mrs. Lane and which is valued at $10,000.
This defense was not urged when the case was first submitted to our consideration. Strictly, it should not be noticed.
The record does not verify the fact advanced by the defendant.
It is true that there are one and even two judgments recognizing certain real property as belonging to Mrs. Lane, but they do not contain such a description of it as can enable the Court to identify it with any land described in the inventory.
Even then, the inventory does not show that the property is worth $10,000. Reliance is placed on the testimony of the defendant to show this value. He simply says that there must have been seven to ten thousand dollars’ worth of land.
This is not, assuredly, such a valuation as can serve as a basis for a proper computation of the bond to be given.
We think, however, that justice forbids that the administrator should be required to furnish a bond to answer for property which does not belong to the succession in his charge, although the bond in such a case would be an idle formality. We will, therefore, while maintaining our previous decree, reserve to the appellant the right to have it determined by the lower court whether or not 'the property unquestionably belongs to Mrs. Lane, and what is its exact value on the inventory; and were the court to find in his favor, to reduce the amount of the bond fixed by this Court, without prejudice to the rights of the plaintiff to have the findings of the district judge reversed on appeal.
With this reserve, the application for a rehearing is refused, with costs.
Manning, J., takes no part.