On Petition for a Rehearing.
Niblack, C. J. — In answer to a very elaborate and exhaustive petition for a rehearing, presented in this case, we willingly admit that, if we had given in all respects a merely literal construction to the will of Elias Ayers, we might, and probably would, have reached a conclusion different from the one announced in the original opinion; but, talcing all the ¿lauses together, we received the impression in the first instance, that they meant, and still construe them as meaning, that it was the wish of the testator that the ancestor of the appellants should, in any event, have the sum of five1 thousand dollars out of his estate, at the death of his widow..
We do not consider the question as to whether the complaint made a case entitling the appellants to recover what •was due their ancestor, as that question was not presented by the appellees in.their original brief.
The appellees have, since the original opinion was filed, entered a motion to dismiss their appeal, upon the ground that no bond was filed by the appellants, as required by section 189 of the act concerning decedents’ estates, 2 R. S. 1876, p. 557 ; but their motion comes too late, and for that reason can not be entertained.
The petition for a Rehearing and the motion to dismiss this appeal are both overruled.
Woods, J., dissents as to the overruling of the petition, for a rehearing.