Opinion
Ex. No. 9105.
May 26, 1950, Decided
Fred A. Otis, Providence, for appellant.
McGuirk & Martin, Providence, for appellees Jean M. Fales and Evelyn W. Nightingale; Tillinghast, Collins & Tanner, Providence, for appellee Richard W. Lisle, Executor.
PER CURIAM.
After our opinion in the above-entitled case was filed the appellee executor by motion requested and received permission to reargue the case merely in order to determine whether we should clarify certain statements in the opinion pertaining to the question whether in the settlement of his accounts in the probate court of Providence the executor was entitled to credit himself and debit the devisees with the sum of $2190.85 which he paid for the expenses of administration of the ancillary estate in California.
The executor argues that we decided that question in his favor when in our opinion we stated that he "must look to the devisees [Jean M. Fales and Evelyn W. Nightingale] for reimbursement." The devisees claim that we decided in their favor by our statement that the executor "must be deemed to have assumed voluntarily a burden which rested upon the devisees" when he was under no duty so to do.
Neither view is a correct interpretation of our opinion. In making the statement relied upon by the executor we intended merely to point out that the expenses of administration of the ancillary estate were specially chargeable to such estate which consisted solely of the devised real estate in California, as we had already held that they were not expenses of administration in Rhode Island and, therefore, were not properly chargeable to the residuary legatee. In making the statement relied upon by the devisees we intended simply to emphasize that the executor did not act in the discharge of any duty incumbent upon him in the administration of the domiciliary estate when he incurred the expenses of administration of the ancillary estate in California. Therefore our opinion should not be interpreted as deciding either in favor of or against the contentions of the executor or the devisees on the point in question, as it was not properly before us for decision.
We did not decide whether in some proceeding other than that of the settlement of his accounts in the probate court of Providence the executor could recover or be given credit for the sum which, on behalf of the devisees and with their knowledge and consent, he paid in the administration of the ancillary estate. Irrespective of zany statement in our opinion which, out of context, might be susceptible of a contrary view, we now expressly state that the question of the mutual rights and obligations of the executor and the devisees with reference to the sum of $2190.85 which was paid for the expenses of ancillary administration remains open to such parties to litigate as they may be advised without prejudice to either party in any respect.
The papers in the case with our decision as above clarified certified thereon are ordered sent back to the superior court for further proceedings in accordance with the provisions of General Laws 1938, chapter 545, § 4.