[1] Nonsuit—Nature ot Motion—Question Presented.—A motion for a nonsuit presents for decision a question of law and in effect amounts to a demurrer to the evidence, and, therefore, necessarily assumes the truth of all the testimony presented in behalf of the plaintiff.

[2] Wills—Proceeding to Contest—Submission to Jury—Evidence. In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases, and every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the contestants; and if there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on its merits.

[3] Id.—Admission of Evidence of Both Parties—Motion for Non-suit—Consideration of Evidence.—The rule governing the determination of the question whether a nonsuit should or should not be granted in a given ease does not always apply with the same strictness where the motion is made after both the plaintiff and the defendant, or, in the case of the contest of a will, both the contestant and the proponent have presented their evidence, and it is not error to grant the motion where, upon all the evidence, it is clear that if a jury should bring in a verdict against the defendant it would be the duty of the court to set it aside and order a new trial.

[4] Id.—Proceeding to Revoke Probate — Burden of Proof — Presumption of Testamentary Capacity.—In a proceeding to secure the revocation of the probate of a will upon the ground of testamentary incapacity, the attack being upon the order by the court admitting the will to probate and by which the court expressly found that the deceased was of sound and disposing mind, the burden is upon the contestants to overcome the effect of the primary presumption of the testamentary capacity of the deceased and also of the order involving the adjudication, upon presumptive sufficient evidence to justify it, that the deceased was mentally competent to make a will at the date of the execution of the instrument whose legality is under attack, and to show that he was not of such sound and disposing mind.

[5] Id.—Condition of Mind Prior and Subsequent to Testamentary Act—Evidence.—Evidence of the condition of the testator’s mind, both before and "subsequent to the date of the testamentary act, is always admissible as having a tendency to show what the condition of his mind was at the date of the making of the will; but it does not always follow from the fact that a person may, before and after the purported execution of his last will and testament, display some mental peculiarities or idiosyncracies which have not always been in his lifetime characteristic of him or which have not been exhibited by him when he has been in what may be supposed to have been the normal state of his mind, that he is incapable, mentally, of exercising a sound will and judgment in disposing of his estate by testament.

[6] Id.—Mental Capacity—Opinion Evidence—Weight.—The opinion of a witness that a person -is of unsound mind cannot be stronger than, or of superior evidentiary weight to, the reasons upon which he bases his opinion.

6. Weight of opinion evidence as to mental capacity, notes, 38 Ii. R. A. 745; 39 L. R. A. 328, 331; 42 L. R. A. 767.

[7] Id.—Proceeding to Revoke Probate — Insufficiency of Evidence.—In this proceeding to secure the revocation of the probate of a will upon the ground of testamentary incapacity, while the testimony introduced afforded the inference that the deceased at the times referred to by the witnesses often used intoxicating liquors to an excessive degree, and was frequently ill, perhaps from the use of such liquors and "his venerable years, there was nothing in the testimony to indicate that his mental condition was impaired when he was not under a state of intoxication, or that he was not sober and perfectly rational at the time he made the will.