I concur in the opinion that there was no substantial evidence on the issue of testamentary capacity. That issue should not have been submitted to the jury. It appears further that the trial court may have erred in admitting some of the evidence offered by the contestants of the will, and in some of its instructions to the jury. Instruction No. 17, particularly apears to be questionable.
It is not necessary in this opinion to determine whether such instructions and the admission of the evidence in question were error. I am of the opinion, however, that the case should have been remanded for a new trial rather than for a judgment of no cause of action. *Page 245
I cannot agree that there was a lack of substantial evidence on the issue of undue influence. As discussed in the prevailing opinion, the facts bearing on this issue clearly constitute a jury question. That opinion states that at most the probative facts relating to undue influence are deceased's physical condition, the designation of two children as sole beneficiaries, Weldow's activities in obtaining counsel and witnesses for the will, and remarks made by Weldow and Elizabeth when the guardianship papers were served. However, the opinion later discusses at some length other facts bearing on this issue, dating from 1924 to the date of the execution of the will. Elizabeth and Weldow had been in close contact with the deceased for 15 years. There was evidence that in later years, this association led to an almost total exclusion of the other children from their father. These two children had taken conveyances to his principal pieces of property for little or no consideration. Statements of deceased during that period could be interpreted to show a state of mind indicating a fear of, and subservience to Weldow's demands. Evidence of these facts was presented to show a chain of circumstances indicating undue influence exercised by Elizabeth and Weldow, particulary the latter, as admitted in the majority opinion, over a period of years. The jury could have concluded that the two proponents took advantage of the filing of the guardianship papers, by their statements and actions, so as to impel the deceased to the execution of the will, thus forging the final link in that chain.
Adopting the language of the prevailing opinion, it may be just as reasonable to believe the deceased cut the contestants off on account of the incident of the guardianship papers, as it is that the desires of Weldow were governing the deceased's acts at that time. But that definitely presents a jury question. It is not our office to decide whether the opposing alternatives were of equal weight or whether there was a preponderance on one side. We must concern ourselves solely with the question of whether or not there *Page 246 was substantial evidence on the issue. The record and the majority opinion clearly show such substantial evidence on this point.