On Motion for Rehearing. We have said that the actual distribution under both estates was simultaneous. Facts elaborately recited in the brief were fully understood and we think warranted the statement *Page 574 as sufficient for the purpose. That theoretically or on paper the distributions were separate does not vary the result. The controlling fact, as to the undivided property, is that Mr. Hanny was able and saw fit to close the Thomas Warren Keel estate without reducing this property to his possession as administrator. He did not bring it within the terms of the statute as the basis of a claim for commission.
In addition to the authorities previously cited, appellants bring forward Harrison v. Perea, 168 U.S. 311, 18 S. Ct. 129,42 L. Ed. 478. There, it is true, the administrator was allowed his commission, under the New Mexico statute, upon moneys which did not actually come into his hands. But he had sued for their possession and established his right. The result, reduced to its elements, amounted to payment by Harrison to the administrator and return to Harrison after deduction of the commission. The case is not persuasive here.
We see no good cause for a rehearing of this appeal. However, on the question of attorney's fees we are inclined to yield to the reasons urged upon us for a new trial, not to the extent of awarding a new trial ourselves, but to the extent of leaving further procedure herein to the judicial discretion of the trial court, with the powers as explained in State ex rel. Bujac v. District Court, 28 N.M. 28, 205 P. 716.
The motion for rehearing is denied. Our former judgment is vacated. The judgment appealed from will be reversed. The cause will be remanded, with a direction to proceed in accordance herewith. It is so ordered.
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.