Allen v. Massey

On Motion for Rehearing.

We have held in this case that the* facts established upon the trial were sufficient to make prima facie proof of the valid execution of the will, and that, under the proof as constituted by the facts adduced, it would be proper for this court to reverse- and render the cause if it had appeared that, the proof developed could not be contradicted by appellee.

Since appellees introduced no evidence whatever on the trial below, but relied upon-the insufficiency of the case made by the appellant under the proof tendered in his behalf, and obtained a peremptory instruction,, the record as presented before this court does not indicate that the proof -has been exhausted, and that upon another trial it could’ not be developed to an effect which might support a conclusion different from the one, and the only one, which we have indicated' the proof in the record sustains.

Both appellant and appellees have filed1 motions for rehearing. Appellant’s motion seeks a judgment reversing and rendering the cause instead of reversing and remanding it. The appellees, upon the same grounds originally presented to this court to sustain the decision of the court below, again seek an affirmance of the case. In connection with these motions it is asserted on behalf of appellant, and conceded on behalf of appel-lees, that the proof was exhausted in the trial of the cause out of which this appeal grew, and that no proof of a nature different from that contained in the record now before-us could be developed upon another trial. This being so, appellees’ motion for rehearing will be overruled, and appellant’s motion for rehearing granted, and the judgment of the court below reversed and rendered ,for appellant.

It is accordingly so ordered.

On Motion for Additional Findings of Facts.

Appellees have filed a motion requesting additional findings of facts. The motion relates altogether to the finding of facts derived from the testimony of the witness Mc-Kain. We have carefully examined the findings contained in the opinion in connection with this motion. The motion contains one suggestion of an erroneous statement in the findings of facts, and only one. That statement is the last sentence embodied in our finding of facts. It is as follows:

'“He (McKain) testified positively that he did-remember that Allen brought Williams into his office on the occasion of Williams witnessing: the will.”

McKain’s testimony on this point was as follows:

“I just remember that Mr. Allen stated to me, ‘I will go out and get my witnesses.’ He went out for that purpose, and, that being his business, and no part of mine, as I understood it, I did not bother about it; made no suggestions. My best recollection is that Mr. Allen went out and brought Mr. R. F. Williams into my office, but I am not positive about it. Mr. R. F. Williams signed the instrument when he came in.” '

The motion for correction of finding of facts in the respect and to the extent above indicated is granted. The motion to find further suggested facts is not well taken, and ns to the same it is overruled.