
    Gallmeier et al. v. Kaiser.
    [No. 13,042.
    Filed November 1, 1928.]
    
      
      David E. Smith, William C. Geake, Charles E. Sturgis, Robert W. Stine and Elmore D. Sturgis, for appellants.
    
      Leonard, Rose & Zollars and Eichhorn, Gordon & Edris, for appellee.
   Nichols, C. J.

Action by appellee against appellants to revoke the probate of, and to set aside, the last will and testament of Frederick Gallmeier, deceased.

To the amended complaint in one paragraph there was an answer in general denial.

The case was tried by a jury and a verdict returned in favor of appellee. The jury returned with its general verdict answers to interrogatories which found against appellee and in favor of appellants upon the issue of undue influence; and for the appellee and against the appellants on the issue of unsoundness of mind of the testator. Appellants filed a motion for a new trial, which was overruled, and judgment was rendered upon the verdict in favor of appellee setting aside and revoking the probate of the will, and adjudging it invalid. The error assigned is the action of the court in overruling appellants’ motion for a new trial, under which is presented the insufficiency of the evidence to sustain the verdict, and error of the court in giving instruction No. 10 on its own motion. There was ample evidence to sustain the verdict. Nothing can be gained by discussing this question.

Instruction No. 10 clearly and correctly informed the jury as to what is a delusion, and that insane delusions would not destroy testamentary capacity unless they affected the disposition of the testator’s property, and then left it to the jury to determine from all the evidence whether the testator had such delusions, and if so, whether they did affect the disposition of his property, made in his will, clearly instructing the jury that the burden was on appellee to establish that there were such delusions, and, if so, that they affected the disposition of the testator’s property. There was no error in the instruction.

Judgment affirmed.  