The judgment of the trial court ought to have been reversed as heretofore directed herein, for the reason that the court found: "and it does not appear to the court that Willard Fackrell ever intended the contract to take effect in his lifetime," and also for the further reason that the court erroneously concluded "that the said Willard Fackrell never intended said contract to become effective during his lifetime." That finding of fact is contrary to the evidence and said conclusion is contrary to law.
And this court having directed that the parties be given an opportunity to offer additional evidence for the purpose and for the reason stated by Justice Morgan, I, therefore, concur in the foregoing opinion denying the petition for a rehearing.
Givens and Wernette, JJ., adhere to their views heretofore stated. *Page 535