Succession of Dessaud , 6 Teiss. 333 ( 1909 )

ST. PAUL, J.

Questions of fact only are involved. We find it impossible from the record to establish with certainty when the money herein sued for was collected by the defendant in rule, whether on May 12, the day before the decease, as the oral tes.-timony seems to indicate, or on May 33, the very day of the decease, as seems to be indicated by the letter from the bank. Mor does the record establish the time of day of the decease.

Both of these circumstances appear to us material in weighing the testimony herein given. Nor does the opinion of the learned District Judge afford us assistance in this instance, for we find that he has inadvertently overlooked the testimony of one of the witnesses, in the supposed absence of which he in part bases his judgment.

We, therefore, believe that the interests of justice will best be subserved by remanding the case for such additional testimony as the parties may choose to adduce, but without the necessity of taking de novo the testimony of witnesses already heal’d.

For the reasons assigned it is ordered that the judgment of the District Court be set aside and the ease remanded, to be proceeded with according to law, and this opinion.