ON PETITION FOR REHEARING. Both appellees and appellants have petitioned for a rehearing. Appellees in their petition assert that prior to the beginning of the instant case the administrators of the life tenant's 15, 16. estate brought a proceeding to determine the right to possession of $20,000 of bank stock, which had been part of the estate of William B. Hutchinson; that the trial court adjudged that the bank stock continued to be the property of the William B. Hutchinson estate, and that the appellee Amy Arnt, administratrix de bonis non with the will annexed, was entitled to the stock and required to liquidate it and distribute it in accordance with the will; that no appeal was taken, and that therefore the question of the right to possession of all of the property that was part of the estate of William B. Hutchinson was adjudicated, and that in this action the parties are bound by the adjudication. No such question was presented by the briefs prior to this petition for rehearing. No cross-errors were assigned, nor is it now pointed out that there was any finding of fact or conclusion of law concerning the question. A failure to find the necessary facts would be a finding against appellees on this issue if it was presented, but in any event it is too late to present the question upon a petition for rehearing. By not presenting it in their original brief, the question has been waived by appellees. The only question of res judicata referred to in appellees' original brief involves a ruling *Page 527 on an answer in abatement. It is contended by appellees in their original brief that, since, upon the determination of the issue raised upon the answer in abatement, the court held that Amy Arnt, administratrix de bonis non with the will annexed, might maintain an action, and, since no error was assigned upon that ruling, and the evidence heard upon that issue not having been made a part of the record, the ruling is res judicata upon her right to recover. This contention was not taken seriously, since the difference between a right to maintain an action and to recover in the action are obviously different.
Appellees say that the question of who has the liquidation of the residue of the estate after the life tenant is not suggested by the opinion. But there need be no liquidation. The heirs may, if they desire, hold the property intact in joint ownership. Questions are also suggested as to the effect of the opinion in case there were unpaid legacies or debts of the estate. But no such question is presented by the record here, since it does not appear that there were any unpaid debts or legacies, but, on the contrary, all debts and legacies have been paid. Under such a state of facts, the question whether recovery should be had by the administratrix or the residuary heirs is but a technicality at best, since a recovery by the administratrix would be for the benefit of the heirs and the result would be the same.
Appellants in their petition suggest that the competency, as a witness, of Charles E. Arnt, the husband of Amy Hutchinson Arnt, was not passed upon in the original opinion. He 17, 18. testified to many things that are irrelevant and immaterial in the light of the law as laid down in the opinion. He kept books for Mrs. Hutchinson and acted as her agent while she was executrix of her husband's will, and acted as her *Page 528 adviser and agent in the management of her own business after her husband's death. There does not seem to be any dispute as to the material facts involving the amount and character of the William B. Hutchinson estate and the personal estate of Mrs. Hutchinson. The statute, which makes parties to the issue and record incompetent as witnesses in cases like the one at bar, provides that the court may in its discretion require such parties to testify, and that the discretion of the court thus exercised may be reviewed by this court. It is only where there is an abuse of discretion that a judgment will be reversed because the court permitted such a witness to testify. Mrs. Hutchinson apparently imposed implicit confidence in the witness. He seems to have kept all of her records and transacted all of her business for her. Since she permitted him, a party in interest, to transact her business for her and keep her records as executrix, rather than intrust those duties to a stranger, she may have made it impossible for an accounting of the property of the estate to be had without recourse to his testimony. Under such circumstances, we see no abuse of discretion in permitting him to testify, nor does it appear that appellants were injured or their rights prejudiced thereby.
Appellants contend that the trial court cast the burden of proving ownership of certain chattels upon appellants, and that this was error. Appellees established, and it is not 19. disputed, that the household furniture and equipment were the property of William B. Hutchinson at the time of his death, and that the widow continued to occupy the home as it was furnished and to use it during her lifetime. Appellants contend that much of the household equipment had become worn out and obsolete and had been replaced. Expenditures for such replacements should be treated as having been made in maintaining the household *Page 529 equipment as a whole, especially as recourse was had to the corpus of the estate for funds for that purpose, and all household equipment should be treated as part of the corpus of the estate of William B. Hutchinson. A distinction should be made in respect to the strictly personal effects of Mrs. Hutchinson. Articles of personal property can be readily allocated to one group or the other. It is unimportant whether particular articles of household equipment were purchased before or after the death of William B. Hutchinson, and therefore appellees were not required to make proof concerning that matter.
Appellants assert that the mandate of this court is so indefinite and uncertain that it cannot be carried out. They stress particularly a note for $1,500, which is part of 20. the assets of the Emma Hutchinson estate, and contend that it was taken as part purchase price for her own property. If the widow held this note, which represented part of her own estate, which she might have disposed of and used for her own support, it was not necessary for her to spend an equal amount out of the corpus of the estate of her husband, and therefore equity will require that this be treated as part of the residue of her husband's estate.
Appellants contend that the mandate should be modified and a new trial ordered, but it appears that there is no substantial controversy as to the facts, and that, under the law as declared, a decree which will terminate the controversy can be readily written. Disputed facts involve unimportant chattels, the value of which is less than the expense of a new trial.
The petitions for rehearing are denied. *Page 530