I dissent and adhere to the views expressed in the opinion filed on the original submission of the cause.
Angellotti, J., and Sloss, J., concurred.
Rehearing denied. In denying a rehearing the court in Bank filed the following opinion on March 22, 1911: —
Counsel for respondents in his petition for a rehearing of this cause implicitly concedes that we have given a correct construction to the will of Charles Hanson, but thinks that, in our effort to do what we conceive to be substantial justice, we have violated the rule of res judicata — a rule the potency of which as he says, is sufficient ex albo facere nigrum, ex nigroalbum, ex curvo rectum, ex recto curvum. This criticism is based upon a construction of the decree of distribution which is at variance with our construction of the will. But we think this supposed incongruity is far from obvious.
If the testator in fixing the commencement of the five-year trust term at the date of the "entry" of the decree of distribution meant the time when the law made it the duty of the clerk to enter the decree in contradistinction to the time to which a careless, incompetent or corrupt official might postpone the performance of that simple ministerial and imperative duty — if, in other words, his plain intention was that the commencement of the trust term should coincide with the close of the administration when the exigencies of the case would require the active duties of his chosen trustees to begin, we *Page 408 see no reason why the language of the will which manifests this intent should receive a different construction when used in the decree of distribution. There is no leaning in favor of the view that a decree of distribution has misconstrued a will or that it contains provisions which will frustrate the intentions of the testator. On the contrary the presumption is quite the reverse. That the will not only may be construed as here indicated, but that any other construction would have imperiled one of the most important of its provisions is apparent. The right of the primary beneficiary of the trust, William H. Hanson (the only son of the testator), to take the corpus of the trust estate depended upon his surviving the trust term. If the beginning of the term, and consequently its end, could be postponed by the delinquency of the clerk for nearly five months, it could in the same way have been postponed for five years, and if the son had died within the extended period the corpus of the trust estate must have gone, not to his heirs or devisees, but to the heirs or devisees of the widow if she survived him, or to the heirs or devisees of Chesebrough if she did not. Just suppose, therefore, that William H. Hanson had died between the fifth day of February and the twenty-third day of June, 1908, leaving a widow and children, and the contest had been between his heirs and Chesebrough under the terms of the will and decree of distribution, would any court say that the testator when he used the expression "entry of this decree of distribution" had in mind the time when a careless, incompetent or dishonest clerk might choose to enter it, rather than the time when it would be his duty to enter it? We scarcely think so. If this is a correct construction of the will why should the decree of distribution receive a different construction? It uses the same language that is found in the will, and when it says "entry of this decree" why may we not construe those words as referring to the time when the decree would be entered if the law was obeyed, and why especially should we not give it that construction when both the court who made the decree and the trustees who obtained it, acted upon that construction — the trustees in claiming and receiving, and the court in awarding the compensation of fifteen hundred dollars per month from the date of the rendition of the decree? To answer this question as we have answered it we have only to presume that in framing the *Page 409 decree of distribution the court acted upon the assumption that the clerk would perform his duty and in approving the accounts of the trustees it acted upon the equitable maxim that what ought to have been done was done.
The petition for a rehearing is denied.
BEATTY, C.J. HENSHAW, J. SHAW, J. MELVIN, J.
The following is the opinion of Department Two, filed on the original submission of this cause, and adopted by Justices Lorigan, Angellotti, and Sloss as expressive of their views on the hearing in Bank: