(dissenting).
Although in the original case I was unconvinced of the propriety of this court’s holding that the August 10, 1964, decree was final and res judicata, the court then so determined. In re Estate of Stevenson, Wyo., 445 P.2d 753, 757. In the light of that decision, which is the law of the case, I would affirm the trial court in the present appeal.
As is noted by Mr. Justice McIntyre in the prevailing opinion, there has been no allegation of fraud; hence no ground for suit against the executor appears. It is true that § 2-339(d), W.S.1957 (1969 Cum.Supp.), provides:
“In any suit or judicial proceeding to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this act [§§ 2-336 to 2-346], the determination of the probate court in respect thereto shall be prima facie correct.”
Further, under this and other provisions of the Act, one who physically turns over the tax to the Federal Government has legal recourse for the collection from any person interested in the estate of the amount of tax apportioned to that person by the probate court (under authority of § 2-339). Nevertheless, I see no validity in the prevailing opinion’s construction of the Act to give a person interested in an estate to whom a sum was apportioned by the probate court (whether such sum was in fact mathematically a correct or incorrect apportionment) the same legal recourse. There is no indication that the legislature intended that the Act be given such an interpretation.
Unfortunately, the uniform law commissioners have not directly expressed themselves on a matter such as here before us. However, it is of interest to note the suggestion of American Bar Association members that when a beneficiary is required to pay more than his share because of default of another beneficiary he should have a cause of action over against the defaulter and the committee’s responding opinion that to do so is impractical. 9A U.L.A. 500.
The present disposition is without foundation.
ORDER ON REHEARING
This cause having been taken under advisement on the petition of appellees for a rehearing; the matter having been fully considered by the court; Chief Justice GRAY and Justices McINTYRE and Mc-EWAN having voted to deny such rehearing ; and Justice PARKER having voted to grant such rehearing:
It is ordered that said petition for rehearing be, and the same is hereby denied.