King's Estate, In re, A-3379

CourtSupreme Court of Texas
Citation150 Tex. 662,244 S.W.2d 660
Docket NumberNo. A-3379,A-3379
PartiesIn re KING'S ESTATE. KING v. KING et al.
Decision Date05 December 1951

Page 660

244 S.W.2d 660
150 Tex. 662
In re KING'S ESTATE.
KING
v.
KING et al.
No. A-3379.
Supreme Court of Texas.
Dec. 5, 1951.
Rehearing Denied Jan. 16, 1952.

[150 Tex. 663] Harry Bunnenberg, Vernon, for petitioner.

Storey, Storey & Donaghey, Vernon, Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, for respondents.

[150 Tex. 664] PER CURIAM.

In this will contest, a district court jury found the testatrix, Mrs. Jessie King, to lack testamentary capacity, and judgment was accordingly rendered for the contestants against petitioner, Carl King, who defended the will. Petitioner by proper

Page 661

points in the trial court and Court of Civil Appeals sought (unsuccessfully) a new trial on the ground that the verdict was 'so contrary to the overwhelming weight of all the evidence as to be clearly wrong and unjust.' The Court of Civil Appeals affirmed the judgment of the trial court, except in certain particulars not presently material. 242 S.W.2d 925.

In connection with petitioner's particular contention above-mentioned, the opinion of the court below correctly gives the wording of such contention. It also states that the contention is overruled. However, it further discloses beyond any doubt, that, in purporting to overrule the point, the court actually treated it as a question of law, to wit, that there was no evidence to support the verdict, rather than question of fact. The court clearly based judgment, in so far as the particular assignment is concerned, upon its application to the evidence of the legal proposition stated by it thus: 'If there is any evidence of probative force to support this finding of the jury, such finding is conclusive and binding on both the trial court and this court.' That rule, like the rule whereby the reviewing court looks only to the evidence favorable to the verdict, and the rule of whether reasonable minds could differ, applies, and applies only, to the question of whether the evidence as a matter of law requires a conclusion contrary to the verdict. Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 84, 37 S.W. 319; Id., 91 Tex. 406, 44 S.W. 69; Eastham v. Hunter, 98 Tex. 560, 565, 86 S.W. 323, 325; United States Gypsum Co. v. Shields, 101 Tex. 473, 477, 108 S.W. 1165; Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 58, 143 S.W. 1150; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 511; Renfro Drug Co. v. Lewis, Tex.Sup., 235 S.W.2d 609, 613, 621; Gulf C. & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 59 S.W. 589, 591, er. dism. Such tests are not applicable to the question under consideration. The latter...

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    ...and preponderance of the evidence is a factual question within the exclusive jurisdiction of the courts of appeals. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) (per curiam). To determine the existence of evidence to support a judgment, which we must do, without weighing the evi......
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    ...over factual insufficiency is limited to whether the court of appeals applied the proper standard of review. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). Maritime asserts that it only wants us to exercise our limited jurisdiction over standards of review, but its ar......
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    ...points, we must consider all of the evidence in the record that is relevant to the fact finding being challenged. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We must sustain a "factual insufficiency" point if we determine that the finding of a vital fact is so contrary to the ......
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