Opinion
No. 2011.
Filed July 3, 1931.
Decided September 11, 1931.
PETITION FOR REHEARING.
PERRY, C.J., BANKS AND PARSONS, JJ.
Ulrich Hite for the petition.
The trustee moves for a rehearing "mainly for one reason," as he expresses it. That reason is that the claim of the trustee that "any appointee of Edward would have taken a vested interest in the corpus of the trust estate" was not disputed by the appellants and that therefore the appellee failed to argue it. The point mentioned was certainly advanced in oral argument and was ruled upon in the last paragraph but one of the opinion filed by this court. Moreover, our ruling that Edward could appoint, under the power given him, only a person who would be living at the time of the termination of the trust renders the point stated of no particular consequence. "The intention was," we said, "that Edward should nominate some one other than Caroline."
The only other ground of the petition is that the court overlooked the case entitled "In the Matter of the Estate of Isenberg," 28 Haw. 590, presumably regarded as a controlling authority. Nothing was said in that case, however, requiring a conclusion different from the one that we reached in the case at bar.
It is not out of place to say that the so-called "Petition for Rehearing" is in reality a brief and not a mere petition. A "Supplemental Memorandum in Support of Petition for Rehearing" was also filed, confessedly a brief. Rule 5 of this court provides that a petition for rehearing "shall briefly and distinctly state its grounds and be supported by certificate of counsel" and that it "will not be permitted to be argued unless a justice who concurred in the opinion or judgment desires it." This language is clear. It means that such a petition will not be permitted to be argued, either orally or in writing, unless one of the concurring justices requests argument. To present an argument in advance, as was done in this case, is a violation of that rule. The practice, it should be added, has been growing by degrees. It should be discouraged.
The petition is denied, without further argument, under the rule.