Bagnall v. Bagnall

per curiam:

In his motion for rehearing respondent points out that the trial court granted petitioner’s motion for an instructed verdict, and presses the point that in reviewing its action in doing so, we erroneously took into account the trial judge’s findings of fact based upon evidence which was not undisputed. In discussing the difference between the views of the trial court and the Court of Civil Appeals as to the meaning of “while gone,” we used the language which may be susceptible to the construction that we sustained the trial court’s action on the ground, in part, that the findings supported its judgment. What we meant to hold in that opinion is that the instrument offered as the last will and testatment of W. W. Bagnall, deceased, shows on its face that it was executed at a time' when he had in mind an intention to take a trip of some character, and was intended to become effective only on condition that something should happen to him while on that trip; that two disinterested witnesses testified, without contradiction, that Bagnall told them that the contemplated trip was a fishing or hunting trip; and that the evidence" shows, without contradiction, that he survived that trip and died many years later while performing the usual duties of his occupation. Based upon those conclusions, we affirmed the judgment of the trial court.

The motion for rehearing is overruled.

Opinion delivered December 7, 1949.