Testimony as to mental competency is an opinion, be it from an expert or from a layman. And opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co. (1948), 146 Tex. 522, 209 S.W.2d 345; Smith v. Collins (Waco, Tex.Civ.App. 1965), 390 S.W.2d 301, no writ history; Gibbs v. General Motors Corp. (Tex.Sup.Ct. 1970), 450 S.W.2d 827; Parr v. Fortson (Dallas, Tex.Civ.App. 1970), 457 S.W.2d 137, no writ history; Estate of James v. Gant (Waco, Tex.Civ.App. 1971), 469 S.W.2d 927, no writ history. We accordingly reverse and remand the cause to the trial court for trial on the merits.
And opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Smith v. Collins, Tex.Civ.App., NWH, 390 S.W.2d 301; Gibbs v. General Motors Corp., S.Ct., 450 S.W.2d 827; Parr v. Fortson, Tex.Civ.App., NWH, 457 S.W.2d 137. We think a fact question was raised by the evidence as to deceased competency on April 15 and 21, 1969, and that the directed verdict was improper.
Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948). The rule governing such matters is stated very concisely in Smith v. Collins, 390 S.W.2d 301, 302 (Waco Tex.Civ.App., 1965, no writ): "Moreover, it is the duty of the court hearing the motion for summary judgment to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits.