Wooten v. Wilmington & Weldon Railroad , 129 N.C. 246 ( 1901 )

For former opinion in this case and the head-notes thereto, see Wootenv. Wilmington and Weldon Railroad Co., 128 N.C. 119. This case has been considered again by the Court upon the petition to rehear granted to the defendant. We have carefully gone over the former opinion and considered the arguments of counsel, and, in the end, are not disposed to recede from the positions taken in the former decision. Every phase of the case was there discussed at length, except the matter of the effect of the assent by the executors to the legacy of the remainderman upon the plaintiff's rights. If we were to reduce to writing the reasons which have induced us to make no change in the former opinion, the writing would be but a repetition of what was there said. We, there, carefully examined the authorities relied upon by the defendant, after weighing well the arguments and briefs of the counsel of the defendant, and we came to the conclusion that the other view of the law presented by plaintiff's counsel was the correct one.

As to the matter of the assent of the executors to the remainderman's legacy, it is only necessary to say that the plaintiffs admit that the position of the defendant that the assent of the executors to the life tenant's legacy included their assent to the remainderman; but they say they are finding no fault with the executors, or with the defendant, on that account, but are insisting that after the assent, the executors, together with the defendants who were charged with the duty failed to protect the remainderman in the transfer of the legacy — the stock — thereby causing loss to the plaintiffs; and we are of the opinion that the plaintiff's contention must be sustained.

Petition Dismissed.