On Motion for Rehearing.
As was pointed out by us in the original opinion the first twenty-one assignments of error relate.to (1) a statement made by the trial court concerning depositions, (2) the. admission of evidence over objection thereto, and (3) the exclusion of evidence on objection.
None of these matters was raised in the motion for a new trial, but all appear for the first time in appellants’ brief.
Not one case has been cited, nor do we believe one can be found, where the Supreme Court has held that such errors may be assigned for the first time in the appealing party’s brief.
To so hold makes a mockery of the wholesome and established rules of practice and procedure and reduces the office of a motion for a new trial, in a jury case, to an absurdity.
We believe that Mr. Justice Sharp, speaking for the Supreme Court, in saying: “Therefore the holdings announced herein will not be enforced in cases tried before this opinion is rendered and not until the bench and the bar have a reasonable time to become familiar with same” (Stillman v. Hirsch, 99 S.W.2d 270, 276), did not intend to say that the kind of errors, presented in appellant’s first 21 assignments, should be considered, when they appear, for the first time, in an appellant’s brief.
But we considered these 21 assignments of error and found that they were without merit.
We note that in the motion for a rehearing the plaintiffs in error have only complained of the overruling of assignments of error Nos. 1, 3, 4, and 21, and no complaint is made of the overruling of the-remaining seventeen of the first 21 assignments of error.
All of the assignments of error which touch the matter of a construction of the will made by Herman Sparenberg are wholly immaterial in the light of the findings made by the jury on the other issues raised.
If the jury had found that Johanna Sparenberg’s will was valid, then, in such event, the issue of the intention of Herman Sparenberg, in the making of his will, became material to the recovery sought by the plaintiffs, but only in such event.
In the light of the jury’s findings concerning Johanna Sparenberg’s will and the wrongful taking, or conversion, of the certificates of bank deposits, checques, and moneys On hand (belonging to Mrs. Sparen-berg) by the Schelbs, the trial court could not have rendered any judgment other than was rendered, even if the will of Herman Sparenberg ought to be construed, as is contended for by plaintiffs in error.
No complaint is made and no issue was raised tending to show that the submission of the issues concerning Herman Sparen-berg’s will was prejudicial to the rights of plaintiffs in error, or that same influenced, or could reasonably be said to have influenced, or prejudiced, the jury in considering the other and controlling issues submitted and answered.
As to the controlling issues presented on this appeal, we did not elaborate on the facts and circumstances adduced before the jury and on which the jury made the findings supporting the judgment. This we shall do here, to make our position clear.
It will not be contended that fraud or undue influence, in the making of a' will, or concerning any other matter, is ordinar*331ily shown by what may be termed direct or positive evidence.
44 Tex.Juris, par. 43, p. 585, dealing with will contests, says :
“The issues as to responsibility and volition on the part of the decedent are to be resolved in view of the showing as to the following facts:
“(1) Testamentary intentions of the deceased ;
“(2) opportunity afforded to the alleged wrongdoer to control the decedent’s act;
“(3) character and condition of the decedent ;
“(4) activity on the part of the alleged wrongdoer in procuring the execution of the writing;
“(5) naturalness of the provisions of the instrument. :
“While none of these facts, standing alone, is of sufficient probative force to be of decisive importance at any stage of a will contest, it has long been recognized that their evidentiary effect, in case they are shown in combination, is to create an inference or presumption against the propounded instrument. Being thus presented, the facts raise an issue for submission to the jury; and they afford support to a judgment holding the.disputed instrument not to be a valid will.”
Evidence was introduced tending to show all of these matters and situations in the instant suit, the substance of which is as follows:
(1) Johanna Sparenberg’s advanced age (87 years old) and the condition of her health at the time the will was executed. That she was suffering from arteriosclero-' sis, and her physician testified that one in her physical condition naturally suffered a disturbance of mental functions.
(2) Her inability to read or write the English language and to understand the usual terms contained in a legal instrument, and the fact that the will contained a most unusual and unnatural provision leaving $5,000 cash to each of her grandsons, conditioned upon the further fact that such amount, of money was actually on deposit to her credit in a bank at her death, and the further fact that the Schelbs depleted her bank account until there was on hand, at the time of her death, only about $2,000.
(3) Her great affection' for her son George, the deceased father of her two grandsons, the defendants in error, and her love for the grandsons, and her very natur'al feeling of a desire to do for them because their deceased father had cared so ■well for her business for more than 20 years, and her lack of any special obligation to her daughter, Mrs. Schelb.
(4)The fact that in February, 1926, (about 10 months before the execution of the unnatural will that is before us), she made a will in which she divided her properties equally between Mrs. Schelb and her said grandsons, and in which she named Mrs. Schelb and one of the grandsons as independent executors, and the fact that in the will executed in December, 1926 (the one here in question), she not only made no attempt at an equal division, but under the conditions found in such will left the entire estate to Mrs. Schelb; and in which instrument Mrs. Schelb was made sole, independent executrix.
1 (5) The fact that the will (which is before us) was a substantial copy of a handwritten draft made on December 22, 1926, wholly in the handwriting of P. J. Schelb — even the purported signature of Mrs. Sparenberg; and the further fact that Schelb exhibited such instrument to an attorney of his selection and asked the attorney if the instrument was “a good will,” and the further fact that Schelb then and there told the attorney that the signature on the will was actually that of Mrs. Sparenberg, the testatrix.
(6) The fact that the handwritten instrument contained the same misspelled words that Mrs. Schelb wrote on a separate sheet of paper, which were exhibited to the jury, and the further fact that, when examined touching her part in the preparation of the handwritten will, Mrs. Schelb denied that she had anything to do with it and said: “I don’t know nothing about it.” •
(7) The fact that Mr. Schelb wrote the said handwritten will and carried it to his' personal lawyer, when there was further testimony that Mrs. Sparenberg had an aversion for Schelb and did not want him to know anything about her business.
(8) The fact that after the December, 1926, will was procured in the manner adduced before the jury, the Schelbs caused the conditional, bequest to defendants in error to fail and suffer utter defeat by withdrawing all of the money out of Johanna Sparenberg’s account, and by handling such funds as were then on hand and which-were later received, so that there was at the time of Mrs. Sparenberg’s death only about $2,000 in cash.
*332(9) It was shown that after Mrs. Sparen-berg concluded her visit to the Schelbs in December, 1926, and returned to her home in Big Spring, she stated: “I am so glad to get home — here I can be my own boss.”
(10) It was shown that the day after the Schelbs participated in the making of the will before us they took Mrs. Sparenberg to Austin to visit these grandsons, the visit being for only one day, and that they did not let Mrs. Sparenberg out of their sight except for a brief moment, at which time Mrs. Sparenberg said, “Lizzie is jealous” (Lizzie is Mrs. Schelb); and it was further shown that after such visit and time, during the remainder of Mrs. Sparenberg’s life, the Schelbs refused to permit the mother of these grandsons (defendants in error) or the grandsons to •ever see their grandmother alone, and endeavored to prevent them from visiting their grandmother (who had been taken into the Schelb home to live with the Schelbs); and the further fact that the Schelbs sought to cut off all communication between the grandsons and their grandmother, and actually returned all letters and presents sent by the grandsons to their grandmother.
(11) It was further shown that after the execution of the December, 1926, will Mrs. Sparenberg never so much as mentioned the execution of same to any person, and never alluded to same in speaking with the many persons whom she had told about executing her first will — made in February, 1926.
(12) It was further shown that 2 years after the execution of the will before us Mrs. Sparenberg made statements tending to show that she did not know that she had ever executed any such document. She is shown to have said: “By golly, Pap says how our money was to go.” She was referring to her deceased husband, Herman Sparenberg, whose will discloses that he desired his property, at the death of his wife, to descend to his children, and their heirs, share and share alike; and she was shown to have further said: “I will see to it my boys (meaning the grandsons) have their share.”
It was further shown that when Mrs. 'Sparenberg died no word was' sent to the grandsons, or to their mother, and no information was given any one of them of the •offering of the will before us for probate. All of this unnatural secrecy, under the .strange circumstances brought out in this case, and pointed out supra, was properly considered by the jury.
We hold that the evidence adduced before the jury is sufficient to sustain the findings made by the jury on every material issue presented. Russell v. Boyles (Tex.Civ.App.) 29 S.W.2d 891 (writ dismissed); Mayes v. Mayes (Tex.Civ.App.) 159 S.W. 919 (writ dismissed); Craycroft v. Crawford (Tex.Com.App.) 285 S.W. 275; Reinhardt v. Nehring (Tex.Civ.App.) 283 S.W. 347; Id. (Tex.Com.App.) 291 S.W. 873; Kelly v. Settegast, 68 Tex. 13, 2 S.W. 870; Pendell v. Apodaca et al. (Tex.Civ.App.) 221 S.W. 682.
On the matter of sufficiency of evidence to support the findings made by the jury to the issues submitted to the jury to determine whether or not the certificates of deposit were delivered to Mrs. Schelb for the use and benefit of Mrs. Sparenberg, and whether or not the checques and certificates of deposit were obtained by Mrs. Schelb through undue influence, and wheth-' er or not the checques were delivered to Mrs. Schelb as gifts, as well as the certificates of deposit, it was shown on the trial that Mrs. Sparenberg had been a most thrifty and frugal German, who, through such thrift and frugality, had built up an estate in cash and bank certificates of deposit amounting to nearly $20,000, but that, after she was taken from her home in Big Spring by the Schelbs, and moved into their home in Fort Worth, the handling of her funds and properties was taken over by the Schelbs and the funds were thereafter hurriedly dissipated; that, when Mrs. Sparenberg came to Fort Worth, she was feeble and depended upon the Schelbs to look after her deposits and collections for her, but that every rent checque was made payable to her, and, when her rental agent in Big Spring saw that these checques were endorsed in blank by her and also endorsed by' the Schelbs, he sent one checque to Schelb, made payable to him, but it was returned by Schelb, who advised the rental agent that' Mrs. Sparenberg wanted all checques made payable to her; and the fact that this testimony by the rental agent tends to refute the theory of the Schelbs that all this money so taken by them was actually given to them.
It was further shown that Mrs. Sparen-berg at all times before she came to live with the Schelbs used her money and income, for the most part, in the repairing and upkeep of her properties, and invested *333the balance for her own use. These and other facts and circumstances, such as the studied efforts on the part of the Schelbs to prevent the old lady from seeing and communicating with her grandsons, and the depletion of the moneys by the Schelbs until the conditional bequests made to the grandsons had been utterly defeated, and the fact that from 1929 until the date of Mrs. Spar-enberg’s death Schelb handled all of the rents, and attempted to sell the old lady’s home place in Big Spring, and sold her household goods, and took over the details of the old lady’s business, and the further testimony that Mrs. Sparenberg did not like Schelb and did not want him to know about or handle her affairs — all these facts and others detailed in substance, supra, support th.e findings made by the jury.
Holt v. Guerguin (Tex.Civ.App.) 156 S.W. 581; Id., 106 Tex. 185, 163 S.W. 10, 50 L.R.A. (N.S.) 1136; Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275, 55 Am.Rep. 479.
We find that the jury, under the facts adduced, has rendered a just verdict, and that the evidence is sufficient to support the jury’s findings.
The motion for rehearing is overruled.