Moore v. Thornton

Gilbert, Justice. 1. The assignment of error on the overruling of the demurrer having been abandoned in the brief of counsel, it will not be considered by this court. 2. The court erred in overruling the four special grounds of the propounder’s motion for a new trial. The evidence the admission of which is assigned as error in grounds 1 and 2 relates to declarations of the husband of the testatrix that certain relatives of the testatrix would not get any of his property, and were vague as to the time when made, and not sufficient to show any undue influence exercised by him upon his wife. Ground 3 assigned error on the admission in evidence of a deed to property as to which there was no issue in the case, and the evidence was immaterial. Ground 4 assigned error on the admission of testimony of the sister of the testatrix, to the effect that the testatrix had stated to her that her husband had made a will; and as the evidence showed that the will was that of the husband and at a time different from that when the will of the testatrix was executed, the evidence was inadmissible and irrelevant. That part of the testimony as to the state of mind of the testatrix was not sufficient to show any undue influence on the part of the husband as to the making of her will, and was inadmissible for that purpose. 3. The evidence did not support the finding by the jury. The evidence introduced by the caveators did not overcome the prima facie case made by the propounder, or justify the jury in finding that the testatrix, in executing the will, acted under any undue influence. [534] No. 10600. April 10, 1935. 4. Tlie court erred in overruling tlie motion for a. new trial. Judgment reversed. All the Justices coneu/i', except Russell, O. J., and Hutcheson, J., who dissent. G. Y. Harrell, for plaintiff. Cleveland Rees, for defendants.