ON MOTION FOR REHEARING. A motion for rehearing has been filed by respondents *Page 401 herein. The motion undertakes to review the evidence that was duly considered by us in our opinion.
The respondent cites authority to the effect that the pending of administration does not bar right to partition real estate. There is nothing in our opinion herein from which it can be concluded that this court holds that such right is barred by fact of pending administration.
In the case at bar the petition, while seeking to partition real estate, further specifically asks for an equitable accounting among the heirs of Benjamin F. Honaker, who died testate and bequeathed an estate for life in both real and personal property of which he died seized to his wife and bequeathed, in fee simple, said estate to his eight children subject to aforesaid life estate. In our opinion we but expressed the opinion that to apply the doctrine of equitable retainer confusion would be avoided by winding up the suspended administration of the estate of Benjamin F. Honaker. Respondent further cites authority to the effect that inventories are admissible in evidence. No contrary declarations can be found in our opinion. We but commented upon same constituting proof of debt inventoried.
The remanding of the cause for rehearing in the circuit court is based upon the fact that data entering into an equitable accounting is not shown by the record, thus not giving to this court proper data for us to make an equitable accounting.
A further reason is also expressed based upon the fact that there is no data as to what became of the $2400 inventoried personal estate turned over to the widow, now deceased, for the term of her life.
Further difficulty exists in the fact that while there is some evidence that one of the heirs had paid his note to the estate to the widow, still there are numerous notes and personal assets going into the widow's hands that are not accounted for.
Further, the evidence as to the $380 and $500 notes, inventoried as owing by Frederick Honaker, is very confusing, and we found no substantial evidence supporting the amount as found. Neither the inventory nor the evidence of Frederick Honaker furnish satisfactory proof as to the indebtedness being $945.
The judgment of the circuit court is based upon a personal estate of Benjamin F. Honaker, of $945 indebtedness of Frederick, and $38.30 of James. There is no explanation as what became of the balance of the personal assets other than that all were turned over to the widow for the term of her life.
If the personal estate, without fraud of litigants, has been squandered, that burden should be born by all in an equitable accounting.
If the unadministered personal estate upon inquiry be dwindled to the debt of Frederick and James, then in an equitable accounting the interests of Frederick and James are each augmented to one-sixth *Page 402 thereof, and the interest of Frederick in the real estate, now owned by another, must only be chargeable with the balance owing by Frederick after same is augmented by his share in any of the personal estate that was held by the widow for life, if by proper inquiry and proper effort the same can be located and restored to the Benjamin F. Honaker estate.
This opinion on rehearing has for its purpose to more clearly explain as to the impossibility of equitable accounting without data concerning items that enter into same. All of the matters pointed out in the original opinion and in this opinion on rehearing are proper matters entering into an equitable accounting among the heirs and should come into the case without a multitude of objections and arguments thereon which characterized the other hearing. Such a course will be to the avoidance of the law's delay and the expense of printing voluminous records. Motion for rehearing denied. All concur.