SCULL v. AETNA LIFE INS. Co.

assured is to be interpreted upon similar principles." In Thomas v. Leake, 67 Tex., 471, the Court held that under the construction the law gives to the word "children," as used in policies of insurance, it does not mean certain named children then in existence, but these together with such as may thereafter be born to the assured. (See also Stigler v. Stigler, 77 Va., 163; U. S. Trust Co. v. Ins. Co., 115 N. Y., 152; Ricker v. Ins. Co., 27 Minn., 193; 38 Am. Rep., 289.)

We have carefully examined the authorities cited by the learned counsel for the defendants, and are unable to see that they militate against the views we have expressed. In the case of Ins. Co. v. Baldwin, 15 R. I., 106, so much relied on by him, the policy was payable to the wife and children of the assured, and the Court held that the children living at the time the policy was delivered were entitled to the money due thereon, to the exclusion of after-born children, but the Court placed its decision upon the ground that the wife was a joint beneficiary with the children. We do not think this fact was sufficient to change the general rule of construction in its application to the facts of that case, but however this may be, the Court clearly intimates that the decision would have been different if the name of the wife had been omitted and the policy had been payable to the children as a class. "Possibly," says the Court, "if the policy had been expressed to be for the benefit of the children only, the doctrine in respect of testamentary bequests to children payable in futuro, namely, that the bequests are payable to them as a class, and that the class will open to let in after-born children to participate in the bequests, might be applied." This is a statement of our case, and a strong intimation that the rule of construction which we have laid down should apply to it.

In Herring v. Sutton, 129 N. C., 107, also cited by defendant's counsel, the beneficiaries were designated by name, and it necessarily followed that those children who were thus

SCULL v. AETNA LIFE INS. Co.

named took a vested interest in the policy, to the exclusion of all other children, for the intention to restrict the benefit of the policy to them was clearly expressed.

It was suggested that the assured had no legal right to surrender the old policy for the new, but we do not think that this should change the rule of construction. Indeed, if the ɛecond policy had not been issued, and the money had been paid under the first, the result would be the same. The first policy was payable to the children, and this, as we have already shown, includes after-born children. The change, therefore, from the one policy to the other, whether it was in law a continuation of the old policy or a substitution of the new one for it, is immaterial.

Upon a review of the whole matter, we think there was error in the ruling and judgment of the Court below, and that judgment should be entered in that Court for the plaintiffs in accordance with the agreement of the parties.

PER CURIAM: Judgment Reversed.

HOLLEY V. SMITH.

HOLLEY V. SMITH.

(Filed February 24, 1903.)

1. REHEARINGS-Appeal.

When a matter of law has been decided by the supreme court it can be reviewed only on a rehearing, and can not be again questioned in the same case on a subsequent appeal.

2. GRANTS-Water and Water-courses-Navigable Waters-Acts 1891, ch. 532-Acts 1893, ch. 4.

A person making an entry of land covered by navigable waters is confined to straight lines, including only the fronts of his own land.

ACTION by Thos. D. Holley against William Smith, heard by Judge George A. Jones and a jury, at November Term, 1902, of the Superior Court of BERTIE County. From a judgment for the defendant, the plaintiff appealed.

J. B. Martin, Day & Bell, and Battle & Mordecai, for the plaintiff.

Pruden & Pruden, and Shepherd & Shepherd, for the defendant.

CLARK, C. J. This is the same case that was before us in 130 N. C., 85. The plaintiff avers that the Court, in that decision, overlooked chapter 532, Laws 1891. But if so, his remedy was by petition to rehear. . The former decision is the law of this case, and the appellant can not escape the safeguards and requirements exacted for rehearings by simply taking another appeal presenting exactly the same proposition of law to the Court. Perry v. Railroad, 129 N. C., 333, and cases there cited.

But, treating this as an original appeal, there is no error. The Act of 1891 (chapter 532), which was repealed by Act of 1893, chapter 4, especially provided that persons making entry of land covered by navigable water should be "confined

HOLLEY V. SMITH.

to straight lines, including only the fronts of their own lands." The locus in quo is not in front of the plaintiff's land, but in front of another's, and as to such land the entry was unauthorized by law and void.

DUFFY v. SMITH.

DUFFY v. SMITH.

(Filed March 3, 1903.)

1. MORTGAGES-Trust Deeds-Commissions-Estoppel.

A statement by a trustee in a deed of trust that the amount due thereunder is the principal and interest does not estop him from afterwards receiving the commissions stipulated in the deed of trust.

2. MORTGAGES-Trust Deed-Commissions-Auctioneers. When a trustee in a deed of trust sells property, the fees of an auctioneer must be paid by the trustee out of his own commissions.

3. MORTGAGES-Trust Deeds-Fees-Attorney and Client. When there is no evidence that counsel was necessary in a sale under a trust deed no allowance therefor should be made from the proceeds of such sale.

ACTION by Juliet C. Duffy against Isaac H. Smith, heard by Judge George H. Brown and a jury, at September Term, 1902, of the Superior Court of CRAVEN County. From a judgment for the plaintiff, the defendant appealed.

W. D. McIver, for the plaintiff.

D. L. Ward, and Simmons & Ward, for the defendant.

MONTGOMERY, J. The question as to whether a trustee, in a deed made to secure a debt and containing a power of sale, in case of default, will be allowed to receive from the proceeds of the sale the amount stipulated for in the deed, irrespective of inequity in the contract, is not before us for decision. It is admitted by the defendant that if the plaintiff is entitled to recover any amount on account of compensation due to the trustee, she has a right to the amount mentioned in the deed-five per cent on the amount of the sale. The contention of the defendant is that the trustee ought not to receive any commissions whatever, first, because the sale