Estate of Welch

The last will of deceased was admitted to probate, and Bridget Welch, the widow, appointed executrix thereof. The appellant, Mary Ellen Aston, the daughter of the deceased and the executrix, within the year filed a petition for the revocation of the probate of the will upon the ground of undue influence. The respondent, who is the mother of appellant, filed an answer to the petition, denying the allegations as to undue influence. The case came on for trial upon such issue before the court with a jury. After appellant had introduced her testimony and rested, respondent made a motion for a nonsuit, which was granted, and judgment accordingly entered. The appeal is from the judgment, and presents the question as to the ruling on the nonsuit.

The case presented is entirely different from one in which the lower court has granted a new trial on conflicting or insufficient evidence. Here the jury was a part of the machinery of the trial. It was, in the first place, subject to the revisory power of the court, the judge of the facts. The evidence introduced' must, for the purposes of this motion, be all considered as true. It must be given the greatest probative force to which, according…