
    Fuller et al. v. Brakefield et al.
    
    There being some evidence to sustain the verdict that the paper propounded was not the last will and testament of the deceased (though this court would notso find), and thepresiding judge being satisfied, • his judgment refusing a new trial was not an abuse of discretion.
    February 24, 1890.
    
      Probate. "Wills. Evidence. Verdict. Before Judge Smith. Harris superior court. October term, 1888.
    Reported in the decision.
    H. O. Cameron, B. H. Walton and W. A. Little, for plaintiffs.
    C. J. Thornton, L. L. Stanford and W. L. Latham, for defendants.
   Blandford, Justice.

The plaintiffs in error offered for probate before the court of ordinary a certain paper which was alleged to be the last will and testament of one Brakefield. To this certain of the children of the deceased testator appeared and filed a caveat upon the ground that the paper propounded was not the last will and testament of the testator; that the testator did not have sufficient testamentary capacity at the time he made the pretended will; and upon the further ground that the same was procured to be made by undue influence exerted upon him. An appeal by consent was taken from the court of ordinary to the superior court. The ease came on for trial before a jury in that court. There was some evidence to the effect that the testator was insane at the time of the making of the will. Certain actions and conduct on the part of the testator were testified to. It was further shown that the testator directed one Trammell to write a will for him, and that Trammell wrote a will and sent to the testator. Trammell testified that the paper propounded was not the will that he wrote, nor was it shown by any witness that the testator knew the contents of the paper propounded as his will, or that the same was ever read over to him or by him. The .jury found, against the propounders, that •the paper propounded was not the last will and testament of Brakefield. A motion for a new trial was made, upon the ground that the verdict of the jury was without evidence to sustain it. The court refused to grant the motion for a new trial, and the propounders excepted, and the case was brought here for review.

"While we would not, had we been on the jury, have found against the paper propounded, yet we think that there,is some evidence to sustain the verdict of the jury. The judge who presided in the ease was satisfied to let the verdict stand, and it appears that the case •was impartially tried, as no exception is taken to any ruling of the court on the trial of the case. So we cannot say that the court abused his discretion in refusing to grant a new trial, and the judgment is Affirmed.  