Whatley v. McKanna , 1948 Tex. App. LEXIS 973 ( 1948 )

On Rehearing.

Our original opinion contains an error, which we desire to correct. We state: “But this will having been admitted to probate by the County Court, the burden was then on contestants to prove mental unsoundness of the testator.”

Said statement was made on authority of Cook v. Denike, Tex.Civ.App., 216 S.W. 437, and Chambers v. Winn, Tex.Civ.App., 133 S.W.2d 279, which was a correct statement of the law where no contest, is made upon application to probate a will, .and an original suit is afterward filed to set aside the order admitting the will to probate. But where the application for probate is contested in the county court, as in this case, the burden of proof does not shift on appeal but remains on the proponents to prove mental competency of the testator. 44 Tex.Jur. pp. 571, 572, Sec. 31, and authorities therein cited.

With this correction in said opinion, the motion for rehearing is overruled.