
    Joe Norton, Jr. v. Isabella Perry Clarks, Et Vir, Et Al.
    No. A-7715.
    Decided March 16, 1960.
    (333 S.W. 2d Series 108)
    
      Brown & Brown, of Texarkana, for petitioner.
    
      Sidney Lee, of Texarkana, for respondents.
   PER CURIAM.

This is a suit to set aside the probate of a will. Based on jury findings that the testatrix lacked testamentary capacity and was unduly influenced, the district court set the will aside. The judgment of the trial court was affirmed by the Court of Civil Appeals on both grounds. 330 S.W. 2d 484. The only assignments of error here are that (1) there was no evidence of lack of testamentary capacity; and (2) there was no evidence of undue influence.

Because we think there was evidence of lack of testamentary capacity sufficient to raise a jury issue, the Court of Civil Appeals reached the correct result. The testimony regarding undue influence does not rise to the dignity of “some evidence.” It raises no more than a surmise or suspicion and hence, in law, is no evidence. Joske v. Irvine, 91 Texas 574, 44 S.W. 1059 (1898) ; Younger Bros. Inc., v. Myers, 159 Texas 585, 324 S.W. 2d 546 (1959).

The application for writ of error is therefore refused, no reversible error.

Opinion delivered March 16, 1960.  