On Rehearing.
Appellee, in his motion for a rehearing, insists that, since the statement of facts has been stricken out, we are,in error in considering the assignments of error based on the action of the triál court in permitting the witnesses George Oox and Mrs. Wells to testify to -conversations they had. with testatrix, set out in the original opinion, and in instructing the jury that they could consider said testimony for the purpose of determining whether any undue influence had been used to cause Miss Magee, the testatrix, to execute the will or codicil.
The Supreme Court, in the case of A., T. & S. F. Ry. Co. v. Lochlin, 87 Tex. 467, 29 S. W. 469, stated the rule as follows:
“The rule established * * * by the former decisions of this court is that, in the absence of a statement of facts, the rulings of the trial court in admitting and excluding evidence will not be revised, unless it manifestly appear from the bill of exceptions and the record that such ruling is erroneous, and that it caused injury to the party complaining. Railway Co. v. Edwards, 75 Tex. 334, 12 S. W. 853; McCarty v. Wood, 42 Tex. 39; Lockett v. Schurenberg, 60 Tex. 610; Jones v. Cavasos, 29 Tex. 428; Blackwell v. Patton, 23 Tex. 670. If, from the bill of exceptions and the record as presented, it appear that the ruling complained of is wrong as matter of law, and that material and admissible evidence has been excluded, which necessarily controlled the finding of the jury, and without which the action or defense could not be maintained, or if evidence has been admitted which in no phase of the case could be properly admitted, and in either case that the ruling must have affected the result to the injury of the complaining party, the ruling ought to be revised, although there be no statement of facts in the record.”
In the case of Ivy v. Ivy, 51 Tex. Civ. App. 397, 112 S. W. 110, tbe statement of facts was stricken out, and tbe bill of exceptions showed the trial court excluded the ex parte depositions which had been taken of tbe defendant. In passing on the assignment of error which complained of the action of the trial court in excluding said testimony, the court, after stating the general rule from the case of Railway v. Lochlin, supra, stated:
“It will be seen that the testimony excluded, in any possible state of the evidence, was of the most material character, and that it afforded, if true, a complete defense to plaintiffs’ action. In such case the assignment of error presenting this question ; comes within certain exceptions to the general rule above stated, that errors in the exclusion of evidence will not be revised in the absence of a statement of facts. * * * Considering the assignment of error in the light of the bill of exception the ruling of the' court in exclud*255ing the deposition or fit least that part thereof most material to defendant relating to the transaction between himself and Mrs. Ivy with regard-to the execution of the deed was clearly erroneous.”
In the case of Torrey v. Cameron & Co., 74 Tex. 187, 11 S. W. 1088, by the Supreme Court, the statement of facts was stricken out, and by bill of exception error was assigned to the action of the trial court in excluding certain testimony. The court stated:
“But the question arises whether, in the absence of a statement of facts, we can say that the plaintiff in error has been prejudiced by the ruling under consideration. We understand the general rule to be that, without a statement of facts, this court will not revise dhe rulings of the court below in the admission or the exclusion of evidence. The reason is that in most cases, without a statement of the whole evidence, it is impossible for the court to determine whether or not the error, if error it be, has operated to the prejudice of appellant. An exception to the rule has, however, been repeatedly recognized and acted upon by this court [citing a number of authorities]. Where the evidence appears material and relevant to the issues, under any probable state of the testimony, and where the ground of objection is one that is not tenable, we apprehend the bill of exceptions ought to be considered, and the ruling revised, although no statement of facts appears in the record.”
To the same effect are Anding v. Perkins, 29 Tex. 348; Avocato v. Dell’ Ara (Tex. Civ. App.) 57 S. W. 296; S. P. Co. v. Cox (Tex. Civ. App.) 136 S. W. 103; Castellano v. Marks, 37 Tex. Civ. App. 273, 83 S. W. 729.
In the case of S. P. Co. v. Cox, supra, the statement of facts had been stricken out, and objection was reserved by bill of exception to the exclusion of certain testimony. The court reversed the cause, and held that it belonged to the class of cases which were not governed by the general rule, and stated:
“Where the excluded testimony appears to be material and relevant to an issue made by the pleadings, and upon which issue the gist of the case depends, the exception to the rule applies. * * * The excluded testimony tended to show that appellant did not receive the property, and therefore it was relevant to the issue upon which the trial court must have decided the case in favor of appellees. Hence we hold that reversible error is shown, and for which the case is reversed and remanded.”
The bills of exception in this case show that the witnesses George Gox and Mrs. Wells testified to conversations which they had with Miss Magee, the testatrix, with reference to her will and codicil. Appellant objected to the testimony because it was an attempt 'to prove undue influence by a declaration of the testatrix. The court not only overruled the objection, but instructed the jury that they could consider the testimony for the purpose of determining whether there was any undue influence used by Dr. Magee in causing the testatrix to execute the will or the codicil. The jury found all of the issues favorable to the probate of the will, except the (question of undue influence, and the trial court rendered a judgment refusing fhe probate of the will solely on the ground that the jury found it had been executed by reason of the undue influence that had been brought to bear on the testatrix by the proponent, Dr. Magee.
We think the record in this case clearly comes within the exception to the general rule. The conversations which Cox ¡and Mrs. Wells had with the testatrix with reference to the execution by her of the will were not admissible under any condition for the purpose of showing undue influence. Unquestionably said testimony, with the statement from the court, had its influence with the jury. Since the judgment of the court is based alone on the finding of the jury that the will was executed by reason of undue influence, manifestly, to our minds, the admission of said testimony and statement from the court constitute such error as should require a reversal of the judgment of the trial court, although the statement of facts has been stricken out.
The motion for rehearing is overruled.