ON MOTION TO MODIFY MANDATE. Within the time for filing petitions for rehearing, which has now expired, the appellant has filed what is denominated a motion to modify the mandate in the opinion heretofore announced, 5. but which is in substance a petition for a rehearing, since it seeks a change in the opinion with respect to the effect of the language in the will. It is contended that the contract and the wills must be construed as indicating an intention to affect all of the property of *Page 140 which the survivor should die seized, that is, that the survivor contracted that their two children should be the beneficiaries of all of the property, real and personal, of which the survivor should die seized, regardless of whether it was property which had been held by them as tenants by the entireties or property which the survivor held individually. But the contract and the will relate only to the disposition of "our property owned by us jointly as husband and wife . . . in such a way that our children shall derive a certain benefit therefrom," and the devise and bequest refer only to "all the property in the State of Indiana, which may be owned by myself and my said wife, jointly, and which may come to me as the survivor of us, and which I may own at the time of my death." The construction contended for is strained and unreasonable. The petition is denied.
The appellee Butler University has filed a petition to modify the mandate in so far as it affects Albert Noble Whitsett, who was an appellee. Mr. Whitsett assigned no errors and 6. presented no brief, and the direction for a judgment in his favor was improvidently entered, for the reason that his cross-complaint asking a judgment below had been dismissed, and he has no pleading in the record by which he prays judgment of any kind in his favor. It further appears by a showing in connection with the petition to modify the mandate, that, by a written agreement between the appellees Albert Noble Whitsett and Butler University, all questions between them were settled and compromised before the termination of the trial.
The petition to modify the mandate is granted, and the mandate is modified to read: The judgment is reversed, with directions to enter a decree which will require that appellee Butler University pay to appellant annually, during her life, 3 per cent. upon the value of *Page 141 the property of which Charles T. Whitsett and Lina B. Whitsett were seized as tenants by the entireties at the time of her death and which was afterwards conveyed to Butler University; and that the value of the property shall be determined from time to time, as provided for in the wills of the Whitsetts, for the purpose of determining the amount of the annuities; and that upon the death of Albert Noble Whitsett, if it occurs prior to the death of appellant, Butler University shall pay to appellant 6 per cent. upon the value of such property from the time of the death of said Whitsett, for the remainder of her life; and that the University shall pay interest on all deferred payments at the rate of 6 per cent.