Will—Revocation of Probate—Fraud—Defective Execution—Evidence.—In a proceeding to revoke the probate of a will, it is held that the trial court was justified in holding that there was no substantial evidence of fraud or of any defective execution of the will.

Id.—Undue Influence-—Opportunity to Exercise — Invalidating Will.—In order to invalidate a will on the ground of undue influence, mere evidence that the persons alleged to have exercised such influence had the opportunity to do so and might have done so if •they had been so disposed and had possessed such influence, is insufficient. The undue influence must actually exist, it must be actually exerted and it must be so exerted as to affect the terms of the will.

Id.—Confidential Relations With Testatrix—Principal and Agent —Burden of Proof.—The fact that the confidential relation of principal and agent existed between the testatrix and an executor and beneficiary under her will, does not of itself prove that the will was procured by undue influence arising from that relation, nor cast upon him the burden of proving the absence of such influence at the time of its execution.

Id.'—Evidence—Attorney Who Drew Will—Cross-examination to Rebut Inference of Undue Influence.—Where in support of the issue of undue influence, the contestants, on the direct examination of the attorney who drew the will, elicited evidence tending to create an inference that a person charged with the exercise of undue influence was unduly active in the matter of the execution of the will and was endeavoring to influence the testatrix in his favor, it was proper for the proponents, on cross-examination of the attorney, to show what actually occurred during Ms consultation with the testatrix at her house in reference to the terms of the will and at a subsequent interview between them at his office at the time the will was executed, where such faets would tend to- rebut such inference.

Ib.—Mental Capacity—Impairment of Memory Due to Age.—A testatrix having a slight impairment of memory due to old age which led her to rely on others more than she otherwise would, but who was nevertheless able to and always did think, talk, and act rationally, and manage such of her affairs as she there had in hand with reasonable prudence and judgment, was not mentally incompetent to make a will.

Id.—Medical Testimony—Opinion Based on Erroneous Assumption op Facts.—An opinion of a medical expert as to the mental ineompeteney of the testatrix, based upon a hypothetical question which assumed facts in respect to her mental condition entirely variant from those shown by the uneontradicted evidence, and upon a misconception of the effect of the evidence, cannot be given any probative force.

Id.—Want op Testamentary Capacity—Evidence—Nonsuit Properly Granted.—On a contest of a will on the ground of the want of testamentary capacity by the testatrix at the time of its execution, it is held, upon a review of the evidence on that issue, that the trial court was warranted in granting a nonsuit, and that on the whole ease no reasonable person could believe that the testatrix had not sufficient mental capacity to make the will.

Id.—-Admission op One of Several Legatees—Incompetent Evidence. On a contest of a will on the ground of undue influence, evidence of a statement made by one of several legatees, which was in effect an admission tending in some degree to prove undue influence, is incompetent.

Id.—Impeachment op Party’s Own Witness—Preliminary Showing.—On the trial of such a contest, the contestants cannot impeach their own witness by evidence of contradictory statements, unless they first show that they had been misled or surprised by the testimony he gave.

Id.—Proponents’ Bill of Costs—Time of Filing—Judgment.—A ruling of the trial court granting a motion for a nonsuit on the contest of a will is not the judgment of the court, and the proponents’ cost-bill is filed within the time allowed by section 1033 of the Code of Civil Procedure, if it be filed within five days after the judge signed the draft of the form of the judgment which was . afterward entered in the minute-book.

Id.—Findings not Required—Decision.—No findings are necessary to such a judgment, and hence the “decision” referred to in section 1033 of the Code of Civil Procedure must be understood in such cases, to mean a judgment entered upon a motion.