The opinion
On Rehearing.
If a trust relation continued after the settlement of 1914, it was of the same nature and character as before the settlement. So we were in error on original submission in our conclusion that, “if Mr. Hamilton continued to hold the excess' dividends after the settlement of 1914 as trustee, the relation was nothing more than a constructive trust.”
Under the theory of law upon which we have based our opinion, the issue of constructive trust was not'in the case. In fairness, however, to appellant, we should say that the issue of constructive trust was advanced as a corollary to the proposition that, in law, the express trust, if there was an express trust, terminated when and as soon as Hamilton collected sufficient dividends to pay the note, and that from that date limitation began to run. As we said in our original opinion, most of the authorities reviewed by us were cited by appellant in support of this proposition. It was in connection with this proposition that the further contention was made that, since the original trust was terminated, if Hamilton continued to collect and hold the excess dividends under a trust relation, it could have no higher dignity than a constructive trust. The proposition thus advanced was supported by the citation of Dunn v. Dunn, cited by us on our theory of constructive trust.
To the extent indicated, appellee’s motion for rehearing is granted, but in all other respects overruled. After giving the most careful consideration to appellee’s written argument and also to his oral argument in support of his motion for rehearing, we cannot escape the conclusion that the settlement of 1914 terminated all trust relations.
Granted in part; overruled in part.