Cooley v. Miller & Lux

The petitions for a rehearing are denied. In response to the points urged therein, we will say that the opinion in the case upon the question of the construction and effect of the instrument referred to as "Exhibit B," and upon the question of undue influence, is predicated upon the facts stated in the opinion; that it appears that the case was tried and decided in the court below upon the theory that the plaintiff was barred by the decree of distribution and that the facts, aliunde, shown in the record, bearing upon the construction and effect of that instrument and undue influence in relation to it, are such facts only as were incidentally shown in the course of the trial of the other question. If the case is to finally rest upon the questions last mentioned, it is more in consonance with the correct administration of justice in a case involving, as this case does, large properties, that the questions be determined upon a new trial devoted directly to the examination thereof. Upon such a trial all the evidence bearing upon such questions can be introduced and new pleadings may be filed if necessary. The record now before us omits many facts which might be relevant to these propositions; at least we surmise that it does, from that *Page 527 which does appear. If upon such a trial it should be claimed that the aforesaid instrument should be construed as a grant of a share in value, only, of the estate and not of the specific property, and that Campbell has already received all, or a large part of it, in money, thus satisfying the grant, or a due proportion of it, or if it should be asserted that he has elected to take the whole, or part of it, in money by retaining such sums as he may have received under the orders of the court as attorney for absent heirs, and, that the plaintiff is thereby estopped from now claiming any of it, or the ratable part of it, as a share of the real estate, or that the grant was obtained by undue influence, there is nothing in the opinion rendered which precludes such inquiries. No such questions have been heretofore presented, either here or in the court below, nor does the record here show that Campbell received any money as attorney for absent heirs.

I dissent from the second proposition advanced by Mr. Justice Shaw. I think the instrument "Exhibit B" was a mortgage.

Rehearing denied.

Upon denying the petition for a rehearing, the court in Bank, on December 20, 1909, rendered the following opinion: