(dissenting).
The principal fact issue in this case was whether or not the testator, Howard Cunningham, executed his will as a result of undue influence practiced upon him. The jury determined that question in the negative. The jury also found that Howard Cunningham was possessed of testamentary capacity and that he executed the will *700which was offered for probate with the intent that the same should be his last will and testament.
The following issue was cast in the negative form in order to place the burden of proof upon the proponent. By the submission of this issue the court was endeavoring to ascertain whether or not the will for probate had been revoked, but grammatically the negative answer “no” is tantamount to the finding that “We the jury do not find that the will had not been revoked”. In my opinion the form of the issue and the requirement of a “yes” or “no” answer led the jury into a state of confusion.
Now this court has held that since there is testimony that this testator executed two wills, though remarkably similar and neither making any bequest to Miss Usher or Dr. Usher, niece and nephew, and since it is not shown by the evidence as to which of them was executed later, no effect can be given to either and the Ushers will take all of the decedent’s property.
The sole question presented here is whether there is any evidence to support the jury finding on the revocation issue.
In a will contest the burden of proof to show that the will offered for probate had not been revoked is upon the proponents. Probate Code, § 88(b) (3), V.A.T.S. But where a written will is produced and its proper execution shown, there arises a presumption of continuity and the requirement of the statute in that respect had been met. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025; Womack v. Woodson, Tex.Civ.App., 169 S.W.2d 786; Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571; Redmond v. Redmond, Tex.Civ.App., 127 S.W.2d 309; Sien v. Beitel, Tex.Civ.App., 289 S.W. 1057. Any other rule would greatly hamper the probating of wills in this state.
From the proponent’s standpoint there was not only the presumption of continuity but there was evidence of non-revocation, including the testimony of both Mrs. Ashley and Mrs. Gwynn that they had never subscribed as witnesses to any will of Mr-Cunningham.
Dr. Usher disclaimed any right, title or interest in the estate in favor of his sister. Dr. Usher testified that he and his wife went to Rockport on the day following Mr.. Cunningham’s death and were referred to-proponent’s attorney who exhibited to them, a document described as Mr. Cunningham’s last will. He further testified that this document was not the will offered for probate,, because to the best of his memory it consisted of only two pages and was witnessed' by the beneficiaries, Mrs. Ashley and Mrs.. Gwynn.
Mrs. Usher testified that the witnesses-shown on the document were Mrs. Ashley and Mrs. Gwynn; that Mrs. Gwynn and' Mrs. Ashley were both left 15 shares of stock; that the Cloberdants and the McLes-ters were not mentioned in this document;, that it did include the provision for St. Peters Episcopal Church; that the document consisted of only two pages and. showed to have been executed on August 7, 1961, which was also the date of the will' offered for probate.
In my opinion the testimony of Dr. and Mrs. Usher is too vague and uncertain to-be accepted as having any probative effect. The well-known rule as to “no evidence” does not require us to disregard matters of common knowledge or those facts which are obvious or established beyond contradiction. Dr. and Mrs. Usher were in Miss-Bonner’s office for only a few minutes ; neither copied or took any notes of the contents of the document so that this testimony, given more than a year later, was. entirely a product of their recollection.. They both testified that in looking over the-will they were surprised, but it is quite evident that this surprise was occasioned by the fact that Mr. Cunningham had made-no provision for either Dr. Usher or Miss Usher in his will. The contents of the will' were important to Dr. Usher only as they affected him and his sister. Otherwise, it would be of little interest to him how his *701uncle might distribute the property among his friends and what proportion should be given to each. Actually Dr. Usher testified to no material inconsistencies in the two documents and the only ones related by Mrs. Usher were that Mrs. Gwynn was bequeathed 15 shares of stock instead of the residue of the estate, and that the Clober-dants and the McLesters were not named in the document she saw. While Mrs. Usher was very positive in her testimony as to her recollection of the contents, it is somewhat noteworthy that she either did not read the entire instrument or did not recollect to whom the will devised the greater part of the estate. Out of the 104 shares of corporate stock owned by Mr. Cunningham at the time of his death she accounted for the disposition of only 40 shares and also failed to account for the disposition of the cash in 'the bank. So that all of the testimony in this case shows that the will was written on two pages in the handwriting of the testator and signed by him; that St. Peters Episcopal Church was to receive 10 shares of the corporate stock, Mrs. Ashley was to receive 15 shares, and a substantial bequest was made to Mrs. Gwynn.
For there to be competent evidence supporting the jury’s finding it must have warranted a belief that Mr. Cunningham on the same day executed two wills of the same general purport without attempting to revoke either expressly or by mutilation or destruction but on the other hand preserving both so that they would eventually come into the hands of those whom he had appointed executrices and from them into the hands of their attorney. It must also warrant the belief that they selected which of the two wills would be offered for probate and that their attorney from some unexplained motive or from no motive at all exhibited to Dr. and Mrs. Usher the one which they decided not to probate. There could have been no motive to deceive Dr. Usher since if there had been two wills neither made any provision for him or his sister and it mattered not at all to them, which was probated.
The statute covering the matter of revocation contains the following provision:
“No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.” § 63, Probate Code.
There is no proof here of any subsequent, will or declaration in writing executed with like formalities.
The import of Dr. Usher’s testimony is-that Miss Bonner showed him a document , which she said was the last will of Mr. Cunningham and which was in the handwriting of Mr. Cunningham, but neither he-nor Mrs. Usher testified from their own knowledge or observation that the document purported to be the last will and testament of Mr. Cunningham or that the document appeared to be executed by Mr. Cunningham as such.
The test as laid down in the often-cited landmark case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, is “not whether-there is literally no evidence, or a mere scintilla, but whether there is any that, ought reasonably to satisfy the jury that the fact sought to be proved is established,” and “that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to • be established, such testimony, in legal contemplation, falling short of being ‘any evidence’.” In our opinion the testimony here merely raises a “surmise” or “suspicion”' that Mr. Cunningham executed two wills, on the 7th day of August in due form or that the attorney for the proponents exhibited a will to Dr. and Mrs. Usher-which was not the one offered in evidence - in this case.
The cases relied on by the Court of Civil Appeals, namely, May v. Brown, 144 Tex. *702350, 190 S.W.2d 715, 165 A.L.R. 1180 (1945) and Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001, are not controlling on the facts. In May v. Brown the testimony was clear and emphatic that the testator had executed a new will, wholly in his own handwriting, and also had asked two young women to sign as witnesses. The provisions of this will were not shown, but from all the evidence the conclusion was fairly warranted that this will was changed to make provision for ¡his wife and children. In the second case the controlling issue was said to be whether or not Mr. Brackenridge executed a will subsequent to the 1913 will with the present intention that it be his will and to revoke all former wills.
For the foregoing reasons I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the ■trial court admitting the will to probate.
SMITH, HAMILTON and STEAK-ÍLEY, TJ., join in this dissent.