
    CHOATE v. TECUMSEH.
    No. 16490
    Opinion Filed May 25, 1926.
    Rehearing Denied March 8, 1927.
    1. Wills — Appeal—(Sufficiency (jfi Evidence —Admission Oil Will to Probajie.
    A judgment entered by the court in the trial) of a proceeding to set aside the admission of a will to probate will not be reversed ctn appeal, unless the judgment be clearly against the weight of the evidence.
    2. Same — Judgment Sustained.
    Record examined; held, to be sufficient to support judgment denying application to set aside the admission of the will to probate.
    (Syllabus by Stephenson, O.)
    Note. — See under (1) 40 Oye. p. 1361. (2) 40 Oye. P- 1359.
    Oomm.ssiofners’ Opinion, Division No. 4.
    Error from District Court, LeFlore Coun-. ty; E. F. Lesteir, Judge.
    Action by Betsy Brandy, revived in the name of John Ghoate, against Houston Tecumseh, to set aside the admission of a will to probate. Judgment for proponent, and petitioner appeals.
    Affirmed.
    E. D. Means and G. A. Holley, for plaintiff in error.
    White & Reid, for defendant in error.
   Opinion by

STEPHENSON, O.

The cotanty court of LeFlore county admitted the will o. Levicey Barneit, a full-blood Ohoctaw Indian, to provKute ou March 5, 1920. Houston Tecumseh was named sole beneficiary in the will. Betsy Brandy, a sister of the decedent, filed h tr application in the county court to set aside the judgment admitting the will to probate, on March 4. 1921. The admission of che will to probate was attacked on the ground that the will was not made, executed, signed, and witnessed as required by law. It was the contention of the petitioner that the restratrix did not understand and speak the English language, and tha1' one of the attesting witnesses did not understand and speak the Choctaw language. The petitioner later filed an amended application, which added an additional ground as a reason for setting aside the admission of (he will to probate. It was charged that the will was procured by duress, fraud, and undue influence.

The petitioner later died, and the cause was revived in the name of John Ohc.ta.te, as executor of the estate of Betsy, Brandy. The testrairix lived at the home of Houston Tecumseh for several years prior to her death. The county court refused to set aside the admission of the will to probate, and the contestant -appealed the cause to the district court. The trial of the proceeding in the district court resulted in a judgment affirming the admission of the will cc> probate. The contestant appealed the cause here and assigns several errors for reversal. It is contended, mainly, that the judgment of the court was contrary to the law and the evidence. The court made the following finding of fact:

“That the instrument propounded herein for probate was duly executed by the de>-cedent, and ait the time of the execution thereof, the said testratrix was of fulll age, of sound mind and memory, and was not acting under duress, menace, fraud, or undue influence, and that the said will was executed in alii particulars as required by law.”

The evidence is ndt altogether clear and convincing, hut the trial court was in a much better position to determine the weight of the evidence and the credibility of the witnesses, than may be detae on appeal. It cannot be said that the judgment of the eou-t, in refusing to set aside tne order admitting the will to! probate, is clearly against the weight of the evidence. This court will nut reverse a judgment refusing to set aside an order admitting a will to probate, unless it be clearly againsc the weight of the evidence.

Hie sufficiency of the original and amended petition will not be considered, as tve have reached the conclusion that the judgment refusing to set aside the 'admission of the will to probate, is not clearly against the weight of the evidence. It would serve no -useful purpose ro consider other errors assigned, in view of the conclusions reached in the consideration of the - appeal. Orth v. Gregory, 98 Okla. 229, 223 Pac. 385.

The judgment is affirmed.

By the Court: It is so ordered.  