#### A. W. KORNEGAY, Petitioner, v. JOHN MORRIS.

(Decided April 11, 1899).

Will — Contingent Devise — Survivorship.

Decision in this cause reported in 122 N. C., 199, reaffirmed. Hil-liard v. Kearney, 45 N. C., 229, approved, hut distinguished. The Code, section 1327. Buchanan v. Buchanan, 99 N. C., 308.

PbtitioN to rebear dismissed.

Messrs. Allen & Dortch, for petitioner.

Messrs. Aycoclc & Daniels, contra.

Furches, J.

Tbis case was before us at Spring Term, 1898, when it was considered and decided by the Court (122 N. C., 199) and is now before us upon a petition to rehear. Since it was here before (and at the suggestion of the Court) Frances E. Kornegay has been made a party-defendant. But as she files no separate answer, and adopts the answer heretofore filed by the defendant, Morris, the situation is not changed, and the.facts of the case are the same they were when considered by the Court at Spring Term, 1898.

Upon the rehearing, no facts have been called to our attention which had been overlooked by the Court; nor has any new phase of the law bearing on the case been presented to the Court. But the learned counsel for the petitioner put their case squarely upon the ground of error in the opinion heretofore rendered; and in their brief they base their grounds of error upon Hilliard v. Kearney, 55 N. C., 229. They say that the opinion of the Court in this case when here before is in conflict with Hilliard v. Kearney; that Hilliard v. *425 Kearney is a correct exposition of tbe law, and tbat as tbe former opinion is in conflict witb Hilliard v. Kearney it is erroneous.

If tbe former opinion is erroneous, it ought to be corrected at tbe first opportunity, wbicb is now.

Tbe case of Hilliard v. Kearney was discussed by counsel for plaintiff (petitioner) on tbe former bearing, and was fully considered by tbe Court and discussed in tbe opinion then delivered. And tbis case (Hilliard v. Kearney) was fully discussed by tbe learned Obief Justice in bis dissenting opinion.

The case of Hilliard v. Kearney is not disputed as being good law, and was a correct exposition of tbe law of tbe case then before tbe Court. But tbe Court when considering tbis case on tbe former bearing was of tbe opinion tbat it was distinguishable from Hilliard v. Kearney and tbat it was not controlled by tbat case, but by section 1321 of Tbe Code and tbe opinion in Buchanan v. Buchanan, 99 N. C., 308.

Upon a careful consideration of tbe former opinion and tbe brief of plaintiff’s counsel, we find no error in tbe former opinion of tbe Court, and tbe petition to rehear is dismissed.