Cornet v. Guedelhoefer , 219 Ind. 200 ( 1941 )

On Petition for Rehearing. Appellants have filed a petition for rehearing and brief wherein they say: "The single question which we now present to the Court is, was it right to pay all general legacies in full with interest and to pay no part of the specific bequest of $4,171.10 to the specific legatees?"

Our answer is that the same reasoning which justifies the payment of the general legacies in full with interest requires the payment of this specific legacy in full with interest. 17. The logic of this position was overlooked in the original opinion.

John Guedelhoefer, Executor, has filed in this court a pleading designated "appellees' petition to correct certain calculations to conform to the Court's opinion" in which he offers to 18. make adjustment as to the specific legacy and also as to the inheritance tax in conformity with our opinion. He overlooks therein the item of interest which is necessary in such adjustment. He asks that the judgment below be affirmed upon compliance with such adjustment which he treats in the nature of a remittitur. Appellants ask that a new trial be ordered.

We are of the opinion that a new trial is not necessary as there are only the two items for disposition which ought to be the subject of agreement since the principal amounts are undisputed and the interest may readily be calculated. In the absence of agreement the trial court should make such order as is necessary in the premises. The order should credit to each of the three specific legatees on the lien of Bertha Guedelhoefer for moneys advanced, the difference between one third and one fourth of $4,171.10, with interest from one year after the date of decedent's death, and should charge against John Guedelhoefer individually the amount credited to the other three; this in addition to the adjustment for inheritance taxes erroneously charged as stated in the original opinion.

No other question being presented by the petition for rehearing the original mandate will be deemed modified in accordance herewith and both pending petitions will be denied. It is so ordered.

NOTE. — Reported in 37 N.E.2d 681.