De Yampert v. Duncan , 190 Ala. 572 ( 1914 )

GARDNER, J.

This is the second appeal in this cause. See Duncan v. DeYampert, 182 Ala. 528, 62 South. 673, where a sufficient statement of the case may be found.

(1) While there are several assignments of error, the only assignments argued by counsel relate to the construction of item 5 of the will of L. Q. O. De Yampert, which was construed by this court in the opinion on the former appeal. Upon the retrial of the cause the court below followed the construction there given, which resulted in a judgment for the appellee here. As we take it, this appeal seeks a review of the former opinion, which, however, if adhered to, must result in an affirmance of the judgment. We have carefully reconsidered the questions decided on the former appeal, and this in the light of brief of counsel. The argument, however, is not persuasive of error in the former opinion, and we therefore conclude to adhere thereto.

(2) It is insisted, however, that in the former opinion it was assumed that the testator, in item 5 of the will, intended to malee a gift of the property by the will, while the language used did not justify the assumption, but that, in fact, the language was rather a mere narrative of past transactions. We have given to this question also careful consideration, and we are of the opinion that the assumption of an intended gift by the will ivas fully justified by the language used by the testator.

We do not deem it necessary to enter again into a discussion of the questions here urged at this time, but content ourselves with a reference to the opinion on the former appeal, above cited, as authority for the affirmance of the judgment of the court below.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.