On Motion for Rehearing.
Appellants have filed their motion for rehearing. They admit that the will offered for probate, in so far as its form is concerfied, meets the requirements of article 7857, Revised Civil Statutes of Texas —that is, it is in writing, the name of the alleged testator appears thereon as the maker, and the names of two persons appear thereon as attesting witnesses; but appellants now vigorously contend that there was no proof that John Kveton executed the will offered for probate “with the formalities and solemnities required by law to make a valid will.” Their contention, more specifically stated, is that, while it is shown that the two persons whose names appear on. the will as witnesses did, in fact, subscribe their names to the instrument, they did not attest the same, as required by article 7857, supra, as being the will of John Kveton, that is, that there was no proof that they or either of them saw John Kveton sign said instrument, or that he told them that it was his will, or that any one else told them in the presence and hearing of John Kveton that it was his will.
After a more careful examination of the somewhat confusing testimony of August Is-elt, the only competent witness offered to prove the execution of the instrument, we have reached the conclusion that we must sustain the contention of appellants and grant their motion for rehearing. In forming our former conclusions we were led into the belief that there were proven such facts and circumstances as would authorize the probate court to find that John Kveton had executed the instrument as his will.
With reference to the signing of the instrument, the witnesses stated that when they, the two witnesses, got in the house where John Kveton and his wife were sitting, Mr. Ludwig, who called them, told them that it was the will of John Kveton and wife, and that this statement of Ludwig, made in the presence of John Kveton, induced them to sign as witnesses, under the belief that it was the will of said Kveton. Upon a more careful examination of the entire statement of facts, however, we must now find that the testimony of Iselt is to the effect that neither Ludwig nor any one else told either him or the other subscribing witness in the presence of John Kveton that the instrument was the will of John Kveton, or of any one else. He finally reduced his statement as to his knowledge of the nature of the paper signed by him, and as to the place where Ludwig told him that John Kveton wanted him to witness his will, to the following:
“He did not say, just at the moment -we signed, it was their will, but he told us it was their will, Mr. Ludwig did. He did not tell us in the house, but he told us out where we were at work that it was their will; that is where he told us. He told us out at the house where we were building, which was about as far from the house we afterwards went to as from here across the street, about a hundred yards. Out at the house he told 'us to come in and sign as witnesses a will for John Kveton and his wife.”
Again he said:
“When going back, I told Mr. Kohlleffel that that was the first paper I ever signed without knowing what it was.”
Having finally reached the conclusion that there was no evidence showing either that John Kveton signed the paper offered for probate, or that his signature was attested by two witneses as required by law, we grant the motion for rehearing; and it is now ordered that the judgment heretofore rendered by this court, aprming the judgment of the trial court, be, and the same is, set aside and vacated, and it is now ordered that said judgment of the trial court be reversed, and that the cause be remanded.
Reversed and remanded.