
    Atlas C. Reeder, Appellant, v. John H. Dupuy, et al.
    
    Directing verdict: When proper.
    
    
      Appeal from, Dubuque District Court. — Hon. Fred O’Donnell, Judge.
    Friday, December 13, 1895.
    Proceeding to set aside the probate of and to annul the will of Phoebe H. Harris, deceased.. The court directed a verdict for the defendants, and 'the plaintiff appealed.
    
    Affirmed.
    
      
      C. W. Baker and Longueville & McCarthy for appellant.
    
      Lyon & Lenehan, JR. W. Stewart, and Henderson. Hurd, Daniels & Kiesel for appellees.
   Granger, J.

I. The grounds upon which -it Is- sought to avoid the will are a want of testamentary capacity, and undue influence. An assignment of error .that the court erred in directing a verdict .sustaining the will is first argued, anid the fact relied upon is that there was some evidence; and then the rule 'of law is invoked that, “where there is some evidence upon the whole case,” the court cannot interfere to direct a verdict. The claim is sustained by quite a long line of authorities iin -this state to that effect, to. which it is not necessary to refer; for that rule for many years obtained, until Meyer v. Houck, 85 Iowa, 319 (52 N. W. Rep. 235), when we ■announced the more satisfactory rule that a motion to direct a verdict should he sustained when, considering all the evidence, it appeared to the court that 'it would be its duty to set aside the verdict, if found in favor of the party upon whom the burden of' ■proof rested. With this rule to guide us, we- have no difficulty in disposing of this ass»gnment of error. The argument is not^a presentation of any particular evidence upon which 'a verdict could rest, if found, nor a reference to .any. After presenting 'the rule and authorities as to “some evidence” 'being sufficient to authorize-a 'submission -to the jury, we are asked, generally, to- give -the testimony -a careful perusal, and particularly that -of one witness. W-e may, in the -same general way, dispose of the question by saying that we have given- ‘it such examination, and conclude, without 'hesitation, that a verdict for the plaintiff could not be permitted ito stand. 'The testamentary capacity of the testatrix is hot to be even doubted, nor is the evidence -as -to undue influence such that it should be permitted -to set -aside so sacred an instrument -as a 1-ast will 'and testament.

II. ’There -are many -objections to the rulings on the admission of testimony, which we have examined, 'and, -in some particulars, answers were excluded that might h-ave been admitted; but the evidence so excluded, if -admitted, could make no difference with this case. With it before 'the jury, a verdict against -the validity of the will could not be permitted to stand. We 'have examined with- -care all the testimony offered, and d-t is clearly Insufficient to set aside la Will. Th-e trifling errors we suggest are entirely without prejudice, -and the judgment will stand —Affirmed.  