#### STATE ex rel E. T. CLARK, Administrator v. R. M. PEEBLES.

(Decided April 12, 1898).

Modification of Judgment on Rehearing.

The judgment rendered on former appeal in .«ame case (120 N. C., p. 3l) is modified in the respects mentioned in the opinion.

PETITION to rehear case decided at February Term, 1897, and reported in 120 N. C. R., at page 31.

*162 Messrs. Thomas N. Hill and F. D. Winston, for plaintiff.

Mr. B. B. Peebles, for defendant (appellant).

Montgomery, J.:

This case has been reheard upon the application of the defendant, the decision in the first hearing being reported in 120 N.. 0., 31. Probably there never wei’e before the Court more complicated and perplexing matters than the record presented in the original case. There were hundreds of pages of the transcript of the record, hundreds of pages of the printed case on appeal, and exceptions by the hundred. The rehearing was confined to the 43rd, 44th and 45th, exceptions of the plaintiff as brought up by the appeal. Upon a re-examination of the report of the referee, the judgment of his Honor who heard the exceptions, and the account of John T. Peebles, the intestate of the defendant, we find that upon the first hearing we overlooked, without fault of ours, the conditions under which the disbursements by John T. Peebles, the administrator cle bonis non with the will annexed of Solomon Boone were made to Indiana Bristow. We are now of the opinion that the items of $200 and $184.67, the interest thereon, and $100 and $91.07 the interest thereon, which were found by the referee to have been proper disbursements of the administrator Peebles, and allowed by his Honor over the exception of the plaintiff, ought to be allowed as a credit to the defendant, and his Honor’s judgment to that effect ought not to have been disturbed. In conformity to this view, we now modify the judgment entered below under the former decision of this Court, herein referred to, to the extent that the share of Mrs. Bristow, to-wit, $882.90 be reduced by the amount of the two items above mentioned. As to the *163item in the account of Peebles, administrator, etc., of $150, and $113.50 the interest thereon, paid to William Grant, the same will not be disturbed for the reason given in the former opinion. The costs to be taxed upon the matter of this rehearing will be paid equally by the plaintiff and defendant. The former judgment and decision are modified as herein declared.

Clark, J., did not sit on the hearing of this case.