Opinion
No. 1232.
November 4, 1925. Rehearing Denied November 18, 1925.
Appeal from District Court, Anderson County; Ben F. Dent, Judge.
J. D. Pickett, of Palestine, for appellants.
B. H. Gardner, and Campbell Sewell, all of Palestine, for appellee.
This is an appeal from a judgment of the district court of Anderson county, admitting to probate the last will and testament of B. J. Hudson, deceased, by which he devised all his property to his daughter, Mrs. Ollie J. Birmingham, thereby making no provision for his widow and his other children. Mr. Hudson was about 84 years old at the time of his death, and left surviving him about 20 children. The evidence showed that at least 4 died in infancy. The property devised was his community interest in a 200-acre homestead. This contest was based on allegations of want of testamentary capacity, undue influence, and insane delusion. The court submitted only the issue of want of testamentary capacity. Due exceptions were reserved to the manner in which this issue was submitted, to the failure to submit the issue of insane delusion, and to the admission of certain evidence. As abstract propositions of law, possibly error was committed by the court in the trial of this case; but it would be academic to discuss appellants' propositions, since it clearly appears that, even on their own evidence, none of the issues pleaded were raised. There is not in the record a scintilla of evidence against the probate of this will. The trial court ought to have instructed a verdict in favor of appellee. It is our order that the judgment admitting the will to probate be in all things affirmed.