
    Joe NORTON, Jr., Petitioner, v. Isabella Perry CLARKS et vir, et al., Respondents.
    No. A-7715.
    Supreme Court of Texas.
    March 16, 1960.
    Brown & Brown, Texarkana, for petitioner.
    Sidney Lee, 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, 1898, 91 Tex. 574, 44 S.W. 1059; Younger Bros., Inc. v. Myers, Tex.1959, 324 S.W.2d 546.

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