Opinion
(Decided 11 April, 1899.)
Will — Contingent Devise — Survivorship.
Decision in this cause reported in 122 N.C. 199, is reaffirmed. Hilliard v. Kearney, 45 N.C. 229, approved, but distinguished. Code, sec. 1327.
PETITION to rehear dismissed.
Allen Dortch for petitioner.
Aycock Danieds, contra.
This case was before us at Spring Term, 1898, when it was considered and decided by the Court ( 122 N.C. 199) and is now before us upon a petition to rehear. Since it was here before (and at the suggestion of the Court) Frances E. Kornegay has been made a party defendant. But as she files no separate answer, and adopts the answer heretofore filed by the defendant Morris, the situation is not changed, and the facts of the case are the same they were when considered by the Court at Spring Term, 1898.
Upon the rehearing, no facts have been called to our attention which had been overlooked by the Court; nor has any new phase of the law bearing on the case been presented to the Court. But the learned counsel for the petitioner put their case squarely upon the ground of error in the opinion heretofore rendered; and in their brief they base their grounds of error upon Hilliard v. Kearney, 45 N.C. 229. They say that the opinion of the Court in this case when here before is in conflict with Hilliard v. Kearney; that Hilliard v. Kearney is a (425) correct exposition of the law, and that as the former opinion is in conflict with Hilliard v. Kearney it is erroneous.
If the former opinion is erroneous, it ought to be corrected at the first opportunity, which is now.
The case of Hilliard v. Kearney was discussed by counsel for plaintiff (petitioner) on the former hearing, and was fully considered by the Court and discussed in the opinion then delivered. And this case (Hilliard v. Kearney) was fully discussed by the learned Chief Justice in his dissenting opinion.
The case of Hilliard v. Kearney is not disputed as being good law, and was a correct exposition of the law of the case then before the Court. But the Court when considering this case on the former hearing was of the opinion that it was distinguishable from Hilliard v. Kearney and that it was not controlled by that case, but by section 1327 of The Code and the opinion in Buchanan v. Buchanan, 99 N.C. 308.
Upon a careful consideration of the former opinion and the brief of plaintiff's counsel, we find no error in the former opinion of the Court, and the petition to rehear is
DISMISSED.
Cited: Rees v. Williams, 165 N.C. 209; Patterson v. McCormick, 177 N.C. 455.
(426)