I concur in most of what is said in the opinion prepared by Mr. Justice WHITFIELD pursuant to recall of mandate and reconsideration of the merits of this cause. I recognize the establishment of the legal principle as stated in that opinion, viz.:
"The court has ruled that the conclusion of the probate court on conflicting evidence will not be disturbed unless the legal effect of the proof has been misapprehended or there is a lack of evidence to support the findings."
But, as I read the record it clearly appears to me that the circuit judge violated this rule in that he did not accord *Page 627 to the findings and judgment of the county judge the force and effect which the established law in this regard requires. There is nothing in the record which indicates that the "legal effect of the proof was misapprehended" by the county judge or that "there is a lack of evidence to support" his findings.
In such state of the record, it was error on the part of the circuit judge to disturb the judgment of the county judge and it is now our duty to reverse the judgment of the circuit court and uphold the judgment of the county judge based on substantial evidence and a proper construction of the legal effect of such proof.