The opinion
On Motion for Rehearing.
Appellants have filed motions for rehearing and presented their argument in support of the grounds upon which it is predicated. They seem to think our opinion was delivered in too short a time to have given it the consideration it deserved. This case was submitted on December 4, 1920, and opinion delivered January 19, 1921. Appellants filed two very lengthy separate briefs on December 3d, and followed by manuscript briefs filed on December 5, 1920. Appellees filed their briefs on January 5, 1921. We worked very hard on this case, and the whole court gave it most earnest consideration. The briefs of appellants were unusually lengthy, and quoted at great length from the testimony. Long prior to the filing of appellees’ briefs we had closely examined the record to become familiar with the issues of fact' and law involved, and had read and considered every proposition presented as well as the authorities cited. We were then and now unusually aided by the able briefs of both parties. And now on this motion we are aided by the further fact that in addition to the motion for rehearing appellants filed a written brief and argument, with citation of authorities relied on. The appellees have filed answer to the motion for rehearing and written argument, together with citation of authorities relied on. By the great pains and industry displayed and by the very able briefs and arguments of both parties our work has been greatly lightened. It is a mistaken idea to suppose this court, and each member thereof, does not give proper consideration to motions for rehearing, for they do. This is shown often by our change of opinion in granting them. It must not be supposed, because we do not always write on such motions, they have not been considered. It would not be practical to write on every motion, for, besides increasing the litigants’ costs, it would unnecessarily incumber the law books.
We have carefully read every line of appellants’ motion and argument in support thereof and every authority cited, and see no reason to change our views.
It is to be noted that appellants all through the proceedings treated the will as independent. In the petition for certiorari from the district court, one of the very grounds alleged for review was the alleged error of the county court in holding it not to be an independent administration. It seems throughout the entire administration, until about May, 1917, it was treated as an independent administration. The very plain contention so made by the pleading of the appellants that it was an independent administration is binding upon them, contending therein for such reason the county court had lost control of the estate for the purpose of an accounting on.the bill for review, and thereupon pleaded against appellees the statute of two years’ limitation to the bill of review. So treating it as an independent administration, by the prayer of the petition, they themselves invoke the jurisdiction of the district court and “pray for any and all such additional relief, general and special, legal and equitable, as may be their due upon all the facts herein shown.” This was duly sworn toby A. J. Parker, one of the parties. Appellants cannot be heard to complain that the district court took their view of the administration.
Appellants say:
“We earnestly beg this court now to find, as an affirmative fact, that appellees have not, m their pleadings or in their proof, made any attack whatsoever on the original contract of February 15, 1916. Such fact finding is absolutely required by the evidence, and when once found it will eliminate any possible favorable consideration of appellees’ first, second, and third cross-assignments of error.”
We cannot find the facts as stated by appellants above, but do observe from appellants’ third amended original answer that it was therein pleaded that the agreement of February 15, 1916, was modified and merged into a new contract, and that said notes were returned to J. L. Bain. J. L. Bain him *579 self testified:' “We canceled the contract and that canceled my notes so far as I was concerned.” The-issue was made by the pleadings and the proof, and appellees attacked the sale made by the executors and Mrs. Butler to J. L. Bain of the 3,100 acres as fraudulent, causing a large loss in money to said estate.
Appellants request us to carefully read the authorities cited by them. This we have done, and would have done anyway, but see nothing in them to change our views of the proper disposition of this case. We see no reason to further lengthen this opinion by discussing and reviewing the authorities cited as appellants request. There is nothing new in this motion or argument that has not already been well presented by the able counsel for appellants.
The motion for rehearing is overruled.