In Re King's Estate

[*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 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 its 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. S. A. & A. P. Ry. Co., 90 Texas 82, 84, 37 S.W. 319; idem. 91 Texas 406, 44 S.W. 69; Eastham v. Hunter, 98 Texas 560, 565, 86 S.W. 323, 325; United States Gypsum Co. v. Shields, 101 Texas 473, 477, 108 S.W. 1165; Wininger v. Ft. Worth & D. C. Ry. Co., 105 Texas 56, 58, 143 S.W. 1150; Cartwright v. Canode, 106 Texas 502, 171 S.W. 696; Woods v. Townsend, 144 Texas 594, 192 S.W. 2d 884; Montgomery Ward & Co. v. Scharrenback, 146 Texas 153, 204 S.W. 2d 508, 511; Renfro Drug Co. v. Lewis, 149 Texas 507, 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 is one of fact. (It is not infrequently described as a question of “sufficiency” of the evidence. See Hall Music Co. v. Robinson, 117 Texas 261, 1 S.W. 2d 857; Wisdom v. Smith, 146 Texas 420, 209 S.W. 2d 164, 166). The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evi [*665] dence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some “evidence of probative force” in support of the verdict. See cases cited, supra. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.