The opinion
On Rehearing
BOND, Chief Justice.
As related in our original opinion, the will of Mrs. Neale names J. L. McNees as one of the independent executors of her will. Her estate consisted of items of cash in banks in the aggregate sum of $15,-508.45 and U. S. Saving Bonds of the maturity value of $2,000, valued at $1,660, all subject to her debts aggregating $1,050, and costs and expensés of -executors and attorney’s fees in connection with the administration of her estate of an undetermined amount. Also, at the 'death of Mrs. Neale she left undisposed-of community property of herself and husband which she had been administering as independent exe *307 cutrix under the will of her husband, Dr. J. H. Neale, consisting of their homestead and various items of household and kitchen furniture.
In due course the trial court appointed Mr. McNees receiver to sell the community property for the purpose of partitioning it among the joint owners. The homestead and household effects were sold, agreeable to the court and all parties interested, for the sum of $8,174.26. Dr. Neale’s estate at the time of his death, among other things not necessary to here mention, consisted of $500 in cash. During the course of administration of his estate, Mrs. Neale, as independent executrix and primary beneficiary under Dr. Neale’s will, paid all outstanding indebtedness, costs, and expenses far in excess of the $500, and presumably used such portion of the estate for the maintenance and support of herself as she saw fit. There is no positive evidence that Mrs. Neale expended the $500 in course of administration, or for her own use and benefit; in consequence, we held in our original opinion that the $500 was on hand at the time of the death of Mrs. Neale as an asset of her husband’s estate and accountable in the partition among the legatees and devisees of Dr. Neale, along with the $8,174.26, making the total for such distribution the sum of $8,674.26 — one-fourth to the heirs of Dr. Neale and one-fourth to the heirs of Mrs. Neale; and that the remainder of Mrs Neale’s estate passed to the named beneficiaries in her will after the payment of all debts, costs, and administration expenses incident to the probation of her will and the administration of her estate, including a reasonable fee for the executor, Mr. McNees. We did not allow any deduction for receivership fees, or fees for the receiver’s attorney, payable out of Mrs. Neale’s estate, — her estate was then •being administered by the executor.
In motion for rehearing appellants — beneficiaries under the will of Mrs. Neale — assign error to our holding that the $500 of the estate of Dr. J. H. Neale should be accounted for in the distribution among the heirs of Dr. and Mrs. Neale, for the reasons that under the will of Dr. Neale his wife was given the unqualified right to use, sell, or dispose of all his property as she saw fit, and that the un-controverted evidence is to the effect that Mrs. Neale expended much in excess of the $500, and that it therefore must be presumed that she applied the cash on hand in due channels of administration, rather than using her own funds. We sustain the assignment, under the authority that “Where testator gave property to widow for life with authority to consume corpus if income was insufficient for her support, the will authorized widow, if necessary, to consume both income and1 corpus of estate without first resorting to her own.” Maxwell v. Harrell, Tex.Civ.App., 183 S.W.2d 577 , Syl. 10. And “ * * * where a person has two funds to draw upon for living expenses, one his own individual estate, and the other from the estate of another in which he has a life interest with power to consume, in the absence of evidence to the contrary, there is a presumption that he would expend the latter before drawing upon the former.” In re Richey’s Estate, 251 Pa. 324 , 96 A, 748, 749. The $500 left by Dr. Neale was not traced into any funds in bank accounts or in possession of Mrs. Neale at thé time of her death, hence the legal presumption is that she used it as she was privileged to do under the will of Dr. Neale; and it not being a subject for partition among the heirs of Dr. and Mrs. Neale, the $8,174.26 of the estate of Dr., Neale should be distributed by the receiver, — one-half to the devisees of Dr. Neale and one-half to the devisees of Mrs. Neale as per the will, of Dr. Neale, after payment of all costs and expenses of the court below, including reasonable fees for the receiver and the guardian ad litem for the minor defendants, — apportioned as their interests appear in said fund. All costs in this appeal are taxed proportionally against appellees.
Our original opinion and judgment heretofore entered, where it is inconsistent with the conclusions here reached, is set aside; appellant-beneficiaries’ motion for rehearing as above indicated is sustained; otherwise overruled. Appellees’ motions for rehearing are overruled.