Besteiro v. Besteiro , 45 S.W.2d 379 ( 1931 )

On Motion for Rehearing.

Appellees earnestly press their very able’ motion for rehearing, in deference to which we have reviewed the record, which was thoroughly studied, and seriously considered in the original disposition of the case. And while we are deeply mindful of the duty to affirm where that may be .done with reasonable consistency, yet we are unable to avoid or escape the conviction that the record does not warrant a judgment setting aside the deed in controversy, which was so deliberately executed by the grantor with apparently the utmost freedom from the controlling influence of others. Candor invokes the statement that such conviction was present in the mind of the court in the original disposition of this important case on the former appeal, but was put aside for the time on rehearing, largely upon the theory that justice might be better served by allowing appellants another opportunity to develop their cause. They did not, in our opinion, make as strong a ease upon the last trial as upon the former; or, at least, our original conviction that appellants have no case has been sustained, if not strengthened, by the record now before us. Appellees call our attention to the erroneous statement in the original opinion that Maria Besteiro is the younger of the two daughters against whom is brought the charge of exercising undue influence upon their mother. It appears that Rosalia, and not Maria, is the younger of the two, and we now make that correction. The error is deemed immaterial here, however. Maria’s quiet and unassertive nature and disposition, her apparent inclination, or determination, to remain unmarried, seemed to appeal to her mother who, by reason thereof, selected her as the one on whom the latter could best •rely for companionship and solace and support during the remainder of the mother’s life, and as the one most entitled to the mother’s bounty.

Appellant has also filed a motion for rehearing upon some of her assignments of error, but we see no reason for change in the original opinion upon the points raised. Appellant complains, particularly, of the statement in the original opinion that the testimony of appellees concerning transactions with the decedent was admitted without objection from appellant. Appellant points out that the record shows this testimony was in fact objected to by appellant, at the time, but was admitted over those objections. This ruling was not complained of in the appeal, however, and must therefore be treated on appeal as having been waived- by appellant, as though the evidence was admitted without objection.

With these modifications of the original opinion, both motions for rehearing are overruled.