The opinion
Former opinion modified December 2, 1924.
On Petition for Rehearing.
( 230 Pac. 1016 .)
McBRIDE, C. J.
In an ingenious petition for rehearing respondents contend, in substance, that appellant, having alleged in her complaint:
*656 “That Lida Boynton died in Multnomah County, Oregon, on or about the 14th day of October, 1921, and by an order of the County Court of Marion County, Oregon, bearing date of March 24th, 1922, Charles L. Ogle was duly appointed administrator of said estate, and said party has qualified in said capacity, and ever since said appointment Has been and now is the duly appointed, qualified and acting administrator of said estate,”
is estopped as a matter of law from showing the fact,.which is made so clear from the testimony as to be beyond question, that decedent actually lived in the home of appellant in Multnomah County for a period of about four years and died there. Respondents’ theory is that, by alleging that Ogle was “duly appointed administrator of said estate,” appellant has, in effect, alleged the legal conclusion that deceased was at the time of her death an inhabitant of Marion County, and that, while in fact the decedent was domiciled with appellant in Multnomah County at the time of her death and for nearly four years prior thereto, the order of the County Court of Marion County appointing Ogle administrator is a bar to her assertion of such fact in this pi’oceeding. It will be seen by the statement of the issues in the opinion heretofore rendered (Boynton v. Popejoy, [ 229 Pac. 370 ]), that the matter above quoted does not stand alone, but must be taken in connection with other matters stated in the complaint, which recite the fact of decedent’s domicile with appellant with great particularity. So far as appellant’s right to recover is concerned, it is not material whether decedent’s legal residence, domicile or inhabitancy was in Multnomah County or in Marion County. As a matter of law decedent might have been a technical resident or inhabitant of Marion County and on account of her employment have spent the *657 greater portion of her time elsewhere. Both residence and inhabitancy are relative terms, depending upon the particular circumstances, and not infrequently upon intention: In re Colebrook, 26 Misc. Rep. 139 ( 55 N. Y. Supp. 861 ); Sears v. City of Bos ton, 1 Met. (Mass.) 250; Holmes v. O. & C. Ry. Co., 5 Fed. 523 .
A study of the cases cited in “Words and Phrases,” under this title, indicates that the word “inhabitant” has various meanings not inconsistent sometimes with prolonged absence from a particular locality. The deceased had a house in Woodburn, in Marion County, paid her taxes there, had an attorney there, and, for the purposes of administration, the legal conclusion might fairly have been drawn that she was at the moment of her death an inhabitant of Marion County. But appellant stated her whole case in the complaint and there was no demurrer or motion to strike, and the objection is founded upon an ingenious play upon words rather than upon a matter of substance.
Our opinion goes too far in decreeing to appellant the absolute return of the real and personal property. The administrator has answered jointly with the other defendants and has made no allegations or showing that either the real or personal property is necessary for the purposes of administration, or that there are any debts of any kind against the estate. Assuming, however, that there may be such, the decree should be so modified as to subject the property to the payment of debts of deceased and to the right of the administrator to deal with it for such purpose, if necessary.
As to plaintiff’s costs and disbursements here, it would be unfair to the administrator to require him to pay them from, his own pocket, and as to him such costs as have been incurred by him should be paid *658 by tbe estate; but costs and disbursements incurred by tbe other respondents should be borne by them. It is a hard matter to apportion these, but as an equitable adjustment, we will decree that appellant recover from the other two respondents two thirds of her taxable costs and disbursements here and in the lower court, leaving the administrator to apply to the County Court in probate for such expenses as he has necessarily incurred in defending the property of the estate, which is evidently a small sum.
Former Opinion Modified on Petition for Rehearing.