Carl Kabelmacher died, and Emma Kabelmacher, his wife, sought to probate his alleged will. The brothers and sisters of the deceased contested Mrs. Kabelmacher's right to probate the will, and charged that Carl Kabelmacher was of unsound mind at the time that the will was made and that undue influence was used to procure the making of the will.
The case reached the District Court, where a jury trial was begun, but after the testimony was all in the court peremptorily instructed a verdict for Mrs. Kabelmacher, and entered judgment accordingly. The brothers and sisters have appealed, and assign this action of the court as error.
We have carefully examined the statement of facts, and our conclusion is that the court should not have withdrawn the case from the jury, but should have submitted the same for their decision on the issues presented. It is difficult to discuss the evidence and point out that portion of it which in our opinion entitles plaintiffs in error to have the case submitted to the jury, without intimating an opinion as to how the jury should decide. We therefore refrain from commenting upon the testimony.
On the other question presented in the briefs, we rule against the plaintiffs in error. The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 326
ON MOTION TO RETAX COSTS.