The opinion
CORN, Justice
(dissenting).
I dissent to the present opinion and the withdrawal of the opinion of November 16, 1954.
The original petition and contest, while it does not use the exact words of the statute “discovered since the probate of the will”, 58 O.S.1951 § 61, it does by the use. of other words clearly convey the impression, and does definitely imply that these contestants, who were residents of Arkansas, discovered the evidence on which their contest was predicated between the probate of the will and the filing of the contest several months later. Furthermore, *335 that was proven to he so hy' positive evidence in the District Court, which evidence was received without objection, and there was no contradictory evidence at all. It has never been necessary or proper to hold such allegations must be in the exact words of the statute, if the substance was there.
After the contest was filed the proponents appeared and filed a motion to strike one paragraph of the contest, and a motion requesting the county court to require the contestants to make the other allegations of the contest more definite and certain. No objection was then interposed by proponents which is now urged by them. Thereafter, before the contest had been made more definite and certain, upon October 16, 1952, proponents filed an answer to the merits of the contest, and in such answer prayed for affirmative relief' against contestants.
Upon February 9, 1953, long after proponents had made such general appearance, and long after proponents had filed their answer to the merits seeking affirmative relief, they filed their motion to strike the contest from the files thereby raising, for the first time, the question they now claim to be jurisdictional. An entirely different question is here presented than would be presented if proponents had made a timely objection to the jurisdiction, and the lower court had overruled the same, and they had preserved such question and thereafter answered upon the merits specifically reserving such jurisdictional question for review. But herein, proponents having made a general appearance and filed an answer to the merits and even prayed for affirmative relief therein, they cannot thereafter, for the first time, be heard to complain that contestants did not substantially comply with our statute.
In the early case of Scott v. McGirth, 41 Okl. 520 , 139 P. 519, 524 , this court held such an objection as now made was waived if not timely made. There a contest after probate was filed, but the same was neither signed nor verified as reqtiired by our statute. Proponents there filed a demurrer which does not raise the present question. It was their claim, as here, that the alleged defect in the contest constituted a lack of jurisdiction of the subject matter and could be raised at any time, and could not be waived. This Court held such jurisdictional objection must be timely made, and if not timely and properly made, could not be raised at a .later time but had been waived. This Court there said:
“The other point raised by plaintiff in error is that the petition was not signed or verified as required by section 5166; supra. We cannot agree with plaintiffs in error on this question. Had they filed a motion to strike the petition for the want of signature or verification, same no doubt would have been sustained by the trial court; but they did not elect to do so, but filed a general demurrer, which does not raise this question. The question as to the signing and verification of a petition cannot be raised for the first time on appeal in this court. Warner v. Warner, 11 Kan. [121] 122; Gilmore v. Hempstead, 4 How.Prac., N.Y., 153 ; Fritz v. Barnes, 6 Neb. 435 ; Toledo Agricultural Works v. Work, 70 Ind. 253 ; State ex rel. Ruhlman v. Ruhlman, 111 Ind. 17 , 11 N.E. 793 ; Payne, Huntington & Co. v. Flournoy, 29 Ark. 500 ; 8 Ency. Pleading and Practice, 206.”
The case of Voght v. Hall, 203 Okl. 670 , 225 P.2d 822 , relied upon by proponents is not applicable to the facts in the record in this case. In the Voght case, supra, the contest was unverified and filed on the last statutory day for the filing thereof. Promptly and timely a proper motion to strike the contest from the files challenging the defect upon jurisdictional grounds was made and filed. There was no general appearance or answer to the merits made and filed in. the Voght case, supra, prior to the filing of the Jurisdictional motion to strike therein. The question here presented, and presented and decided in Scott v. McGirth, supra, was not presented, or passed upon by this court in the Voght case, supra.
The motion to strike the contest from the files here presented was riot timely made *336 and the same has been waived. See Scott v. McGirth, supra; Pine v. Hill, 158 Okl. 277 , 13 P.2d 154 ; Miller v. Weston, 25 Colo.App. 231 , 138 P. 424, 427 .
The testator, C. F. Meadors, was 79 years of age when the will was made. For some years prior to the date of the will he was afflicted with arteriosclerosis described by physicians as being of the cerebral type and progressive. There was convincing evidence that some two weeks to two months after the date of the will he was noticeably in very bad mental condition, and thereafter continued under daily care of trained nurses and physicians until his death. This condition after the date of the will is not necessarily proof of his condition on the date of the will, but such proof is more important and convincing in such a case as this where testator was afflicted with the progressive ailment above recited. Also, before the date of the will, testator suffered from prostate trouble with operations therefor.
If the investigator of the record should take evidence for proponents to the exclusion of the evidence for contestants, or accept only the evidence for proponents in each case of conflict or contradiction, or value the evidence of proponents as outweighing that in behalf of contestants on each item or detail, then the testator was competent and the trial court’s conclusion was wrong. On the other hand, if we accept with verity all of the evidence for contestants, and give it superior weight in -each instance over the evidence of proponents, then it could be said with reasonable safety that the testator was not at all competent.
This case offers a fine example of the value of the legal philosophy that much weight should be given to the finding and conclusion of the trial judge, who had each of the numerous witnesses before him and observed the giving of his or her testimony and was in far better position than this court to judge the weight and value to be given each answer of each witness.
Contestants urge in this case that notwithstanding the ground of lack of testamentary capacity there is abundant evidence of (a) undue influence and, (b) the total lack of any explanation of this will insofar as it shows to be or might be construed to be an unnatural will in view of the laws of descent and distribution, and in view of the laws of nature. These grounds of contest require most serious consideration before they could be denied. The present majority opinion does not pass upon these contentions. Under the evidence in the record, these facts, coupled with the facts and decision of lack of testamentary capacity, show clearly the judgment and decision of the trial court was correct and should be affirmed. See Anderson v. Davis, 208 Okl. 477 , 256 P.2d 1099 ; Johnson v. Shaver, 41 S.D. 585 , 172 N.W. 676 ; Flowers v. Flowers, 94 Okl. 134 , 221 P. 483 ; Hunter v. Battiest, 79 Okl. 248 , 192 P. 575 .
The majority opinion states:
“The so-called amendment to contest of will filed by contestants alleges four different grounds of contest and contains some most vicious allegations of fraud, duress, misrepresentation, forgery and conspiracy directed at the attorney who drew the will, the executor named in the will and one of the residuary legatees named in the will. At the trial, however, the only ground alleged which contestants were able to support with any evidence at all was their allegation that testator was incompetent at the time of the execution of the will. All other allegations were not only not supported by any evidence at all, but certain of them such as conspiracy and forgery were shown to be completely false and baseless.”
There is something unusual in this case. The record reflects that an attorney by the name of George M. Nichplson, drew the will. He and his secretary were the only subscribing witnesses on 'the will. Before the will was presented for probate his secretary died. Nicholson was both witness and attorney in the county court, both witness and attorney in the district court, and *337 his name is listed on the briefs filed in this court as one of the attorneys for the proponents of the will.
As reflected by the record in this case he voluntarily put himself in this position. The will, according to his testimony, was executed at a time and place where it would have been an easy matter for him to have gotten other subscribing witnesses on the will by stepping across the hall from his office.
The record reflects that he prepared an inventory, showing the property left by the deceased only valued at $500,000, which was subscribed and sworn to by the executor, when he knew the value of the property was $1,300,000. He, in effect, told the daughters of the deceased that after their share (which was $75,000. each) was taken out and the taxes paid, and the expense deducted, there would be little, if anything, left.
I find many other things in the record that has a tendency to discredit his testimony, such as promising to furnish an 'inventory to the daughters of the deceased,, and failing to do so, and the following testimony of himself, James Battles, executor, and Mr. Breeding, auditor for Mr. Meadors, the deceased:
Mr. Nicholson testified as follows:
“Q. Now did he read this will? A. Why I suppose so. He had it a week or so.
“Q. Did he read it in your presence; or did you and him discuss it ? A. No. I don’t, know what he did. He just came in and said the will was all right. And he wanted to sign it. I did not see him read it there.”
James Battles testified:
“Q. You know Mr. Meadors had more confidence in you than in anybody else, didn’t you? A. I knew he had plenty of confidence in me. * * * He had lots of confidence in me.
“Q. Well, you met these daughters once in a while? You did meet them didn’t you? * * * A. Yes, sir.
“Q. Did you say anything to them about this will? A. No, I didn’t.
“Q. Why didn’t you ? A. It wasn’t any of my business to say anything to them- about it. * * *
“Q. Now, do you think the amount he gave them .was sufficient? A. It wasn’t any of my business to think about it.
“Q. So it was worth $1,300,000. at the time the will was executed wasn’t it? A. That’s right. * * * There1 was about $411,000.00 worth of 'taxes too.
“Q. Did you tell the girls in any manner, or in any way that you knew what the amount of his estate was? A. No, I didn’t.”
Battle signed an affidavit:
“That said estate in effect, where no probate of said will has been applied for, does not to the belief and knowledge of this affiant, exceed in value of $500,000.00”. . ,
“Q. Now, did you make that affidavit? A. Yes, sir.
“Q. And you knew when you made it, it was worth $1,300,000.00, didn’t you? A. Yes, I did, but I didn’t know it was worth -that exactly.
“Q. What did you do it for ? A. I did it because the attorney prepared it. It was prepared that way.
“Q. Yes, did you and Judge Nicholson work together? A. I am the executor and he is the attorney.
“Q. You drew the same fee he did when you' went down and got the order? A. Yes, sir. (Note: Amount $15,000 each)
“Q. Had you read the will at that time? A. I only read it while it was read in your office.
“Q. After it was taken from the box? A. No. When you and Mr. Meadors were reading it over in your office.”
Mr. Breeding testified! as follows:
“Q. I will ask you — if these gentlemen sitting here — all three of them— participated in the conference? A. Yes, sir.
*338 “Q. Now I will ask you if they didn’t want you to testify* to this, or this in substance. That you were present in Judge Nicholson’s office, the day the Will was signed, May Sth, 19S0? A. They — Judge Nicholson started the question. And he said, ‘You know on the 5th day of May, that you were in Mr. Meador’s office’. He says, ‘You' were over there with one of the Feder-áis and Mr. Meadors wasn’t present’. And, I says, Judge Nicholson, I was not present when Mr. Kiecolt and I and Mr. Meadors — Mr. Meadors was not present that day in my presence, nor any other day that I had with Mr. Kie-colt.’
“Q. All right. Now did they — can you answer the question? Whether or not — now, that refers to Kiecolt. But, did they ask you whether or not you would testify that you were present when the Will was made? A. He made the statement there, that I was present in Mr. Meadors’ office, with Mr. Meadors and this man that checked his reports, and that I knew the will was made May 5th.
■ “Q. When did you know the will was made? A. I saw it in the newspaper after it was published.
“Q. That is the first time you knew a Will was made — was after it came out in the newspaper? A. That’s right.
“Q. Now, I will ask you, if in the same conference, if Mr. Roberts here, propounded you questions as to whether or not he was competent or incompetent to make a Will, and insisted that he was competent when he propounded the question to you? A. I said, T will have to answer, no.’
“Q. Did he ask you the question though? A. Yes, sir.
“Q. And you told him then that you couldn’t answer it any other way but ‘no’ ? A. I said, T will have to answer it ‘No’.”
The trial court did not believe Mr. Nicholson when he, in effect, testified that the testator was competent and did make the will on the 5th day of May, 1950.
Under the record in this case, without the testimony of the attorney and the executor, neither of whom the trial court believed, it is impossible to say when or where the will was executed. It may be that this will was prepared in Mr. Meadors’ absence, without his knowledge or consent and, was signed by the testator at his home a year or more after May 5th, 1950, and just shortly before he died.
Fraud and undue influence are seldom ever proved by direct evidence, because a transaction involving the fraud and undue influence is guarded with the greatest of secrecy to keep it from being discovered. Therefore under the record in this case the judgment of the trial court should not be reversed.
I do not believe it would be proper for this court to say, in effect, to the attorneys of this state there is nothing, wrong about you acting as a subscribing witness when you prepare a will for a client, with your secretary as the other witness, and if the will is contested, and you testify at the hearing, and the trial court, even in the face of contradictory evidence, holds the will is not a valid will, all you have to do is just appeal to this court where you can rest assured the judgment of the trial court will be reversed because the trial court erred in not believing your testimony.
The májority opinion gives great weight to the testimony of George M. Nicholson, notwithstanding his dual role of active advocate and witness. Here is what the appellate courts say:
In re Torstensen’s Estate, 28 Wash. 2d 837 , 184 P.2d 255 , the Supreme Court of Washington, said: “An attorney violated code of ethics of the state bar when he acted as attorney in trial of will contest and in Supreme Court where attorney had drawn the will, signed it as a witness, accepted the position of executor, and testified in court.”
In the body of the opinion, the- Supreme Court of Washington reviewed all of the *339 decisions of all appellate courts in the United States and said:
“Counsel for appellant has called our attention to the activities of attorney, R. W. Miller, a witness and trial lawyer in this case. They argue little credit should be given to his testimony, in view of his interest in the outcome of this litigation, and his violation of the legal code of ethics. Rem.Rev.Stat. § 139-14, subd. 11, and Rule XI (11), for the discipline of attorneys, 193 Wash. 92 -a, provides an attorney or counselor may be reprimanded, suspended, or disbarred for violation of the ethics of the profession. The bar rule further provides that ‘the Code of Ethics of the American Bar Association shall be the standard of ethics for the members of the bar of this state.’ Rule XIX of the Code of Ethics of the American Bar Association provides when a lawyer is a witness for his client, except as to merely formal matters, such as attestation, or custody of an instrument and the like, he shall leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his clients. Mr. Miller had been Mrs. Torstensen.’s attorney for many years, and represented her in a court action November 2, 1944, in a case instituted by the O. P. A. Mr. Miller drew the will for Mrs. Torsten-sen, in which he was named executor to serve without bonds. Pie and his wife were the only witnesses to the will. Miller also petitioned the court January 22, 1945, to have himself appointed guardian for the estate of Mrs. Torstensen. When appellant filed his petition contesting the will, Miller filed his appearance as counsel for himself as executor, ‘and Mabel Guss, the legatee and devisee under the will’. Mr. Garland acted as co-counsel in all subsequent proceedings. Aside from testifying at length during the trial, Miller acted as trial attorney for himself as executor, and Mabel Guss as legatee. During the progress of the trial, Miller examined seven witnesses who testified in support of the will, and addressed objections and observations to the court on four occasions. We are not advised as to the activities of Miller in preparing the brief for respondents on. appeal, but we do find his name on their brief as their attorney.
“The case of Johnson v. Shaver, 41 S.D. 585 , 172 N.W. 676, 680 , involved a will contest in which the contestants claimed that the testator was mentally incompetent at the time he executed his will. The attorney who drew the will acted as counsel for the proponents-of the will during the trial, and testified that some time before his death, the testator in detail told of all his property, about his past life, and his children, stated what he wanted to do, and was possessed of sufficient mentality to understand his property and his relatives. The court, in speaking of the evidence given by the attorney and his actions-as trial lawyer, stated:
“ ‘We are inclined to think the evidence properly received but solely upon the ground that an attorney who’ drafts a will is presumed to impartially represent the estate and to be without bias. This presumption may hardly be justified in relation to an issue as to testamentary, capacity, as any attorney would naturally hesitate to admit that he had drawn a will for a testator whom he considered to be without testamentary capacity. In this case we find this witness not remaining neutral, but appearing in court upon the trial as one of the attorneys for the proponents of the will. Knowing, as he must, that he would be called as a witness to testify to matters going to the merits of at least one issue raised by contestants, he should, in conformity with the nineteenth Canon of Ethics adopted by the Bar Association of this state and the American Bar Association, have refused to act as attorney for appellants. His evidence is not entitled to that credence to which it would have been entitled if he had preserved, that *340 neutrality that a high sense of professional propriety would have demanded.’
“A will contest was involved in Re Stephens’ Estate, 207 Minn. 597 , 293 N.W. 90, 93 . The grounds of objection to the will were lack of testamentary capacity and undue influence. A jury decided that the execution of the will had been brought about by undue influence. An attorney, W. L. Hursh, drew the will, and signed it as a witness. Hursh testified at the trial as an important witness for the proponents of the will, and actively participated in the trial of the cause, as well as on appeal. In passing upon the actions of the attorney, the supreme court of Minnesota had the following to say:
“ ‘What has been said disposes of the appeal on its merits. There is, however, another matter which we cannot overlook or refrain from discussing, much as we would like to avoid so doing. In Ferraro v. Taylor, 197 Minn. 5, 12 , 265 N.W. 829, 833 , we said:
“ ‘ “The practice of attorneys of furnishing from their own lips and oh their own oaths the controlling testimony for their client is one not to be condoned by judicial silence. * * * The good name and deservedly high standing of the Minnesota Bar require that the practice be stopped, for nothing short of actual corruption can more surely discredit the profession. * * * By appearing in the dual capacity of counsel and witness, and then necessarily by argument urging upon the judge, as trier of the facts, the truth of their own testimony, * * * counsel for plaintiff have subjected themselves to the results which automatically attend such a spectacle, for a lawyer, ‘occupying the attitude of both witness and attorney for his client, subjects his testimony to criticism, if not suspicion.’ * * * ‘In most cases, counsel cannot testify for their clients without subjecting themselves to just reprehension.’ ” ’
“Interior Woodwork Co. v. Buhler, 207 Wis. 1 , 238 N.W. 822, 825 , involved, among other things, the evidence of an attorney who testified as a witness for a litigant and at the same time acted as trial attorney in the case. The court said:
“ ‘ * * * we must again condemn the impropriety of an attorney, who knows in advance of a trial that he is a necessary and material witness, and that he will be required to testify to .contested facts, also attending and participating in the trial as an attorney for one of the contesting litigants. Harold Paul .was the first witness called on behalf of plaintiffs, and then, and again on rebuttal, he testified to the most important contested matters on which plaintiffs relied. Nevertheless, he also, as attorney for plaintiffs, conducted all direct and cross examinations of all other witnesses, and apparently participated in all arguments on the trial as well as in this court. His dual capacity in this litigation is clearly within the condemnation expressed in Roys v. First Nat. Bank, 183 Wis. 10, 20 , 197 N.W. 237 ; Zeidler v. State, 189 Wis. 44, 48 , 206 N.W. 872 ; Borger v. McKeith, 198 Wis. 315, 319 , 224 N.W. 102 ; Baumgartner v. State, 198 Wis. 180, 186 , 223 N.W. 419 , 224 N.W. 474 . The last two cases rec'ognize that unanticipated situations may develop during the course of a trial, because of which the interests of justice may demand that an attorney take the stand, but that, manifestly, did not occur in the case at bar. As 'stated in the cases cited, the practice 'offends against rule 19 of the Canon of Ethics of the American Bar Association, which states ethical considerations that must appeal to every lawyer as sound. Because of those considerations, under such circumstances as existed in the case at bar, an attorney should voluntarily retire from the conduct of litigation as soon as the incompatibility in roles becomes apparent, or else his client should forego having him testify as a witness in support of his client’s cause.’
*341 “Following this case we find in Re Cieszynski’s Will, 207 Wis. 353 , 241 N.W. 364 , reads:
“ ‘The sole question upon this appeal is whether the findings are sustained by the evidence, and it is the conclusion •of the court that the judgment herein should, be affirmed without opinion. The memorandum is filed solely for the purpose of calling attention to an impropriety upon the part of the attorney for the respondent. Mr. Adam-kiewicz drafted the will in question, was .an important witness upon the issue of undue influence, and must have anticipated in advance of the trial that his presence as a witness would be required. It appears from the record that he nevertheless appeared and conducted the litigation on himself of the •estate. In such a situation, a lawyer •should withdraw from the conduct of the litigation, or his clients should fore-,go his testimony.’
“The Supreme Court of Illinois in McKey v. McKean, 384 Ill. 112 , 51 N.E.2d 189, 194 , had this to say of a witness who acted as attorney:
“ ‘The course pursued by the attorney in this case would not properly subject him to criticism had the necessity of his going upon the witness stand resulted from some unforeseen event that occurred in the progress 'of'the trial, but that was not so. He instituted the suit. He prepared the complaint. He conducted the case and the examination of witnesses before the master until shortly before he announced his withdrawal as an attorney. It must have been as apparent to him when he dictated the complaint that he believed his testimony would be material, as when he took the witness stand. Immediately upon that fact becoming evident, it was his duty to then determine whether or not he would be a witness in the cause, and if he was to testify, he should at that time have entirely severed his connection from the litigation. If the conclusion was that he should not testify, he and his client should have abided by that decision, unless , some emergency thereafter arose which could not be anticipated, making it important for .the protection of his client’s interest that he should testify. Onstott v. Edel, 232 Ill. 201 , 83 N.E. 806 , 13 Ann.Cas. 28. This practice has been repeatedly condemned by this court. The testimony of an attorney in a case under such circumstances is entitled to little or no weight or credit’.
“Accord; Inman v. Inman, 158 Va. 597 , 164 S.E. 383 ; Protheroe v. Davies, 149 Kan. 720 , 89 P.2d 890 ; Beninca v. Nardiello, 320 Ill. 181 , 150 N.E. 661 , and Zeidler v. State, 189 Wis. 44 , 206 N.W. 872 .”
The majority opinion places great reliance upon the credibility of the testimony of a neighbor, John Gillespy, pertaining to a business transaction. Gillespy testified he had a ‘business transaction with testator in the year 1950, and on dross examination stated -that he concluded this transaction with Meadors, the testator, on July 5, 1950. The undisputed hospital records of St. Anthony Hospital show that on July 5, 1950, Meadors was hospitalized, was suffering from arteriosclerosis, cerebral type, and that he did not even then know he had any daughters and that he did not know where he was, what day it was or what year it was. Certainly the credibility of a neighbor who testified that he concluded a business transaction with testator on July 5, 1950, when testator was in the hospital in such mental condition could not be said to rise to the dignity of testimony that is worthy of belief by any court.
The present majority say that the testimony of certain of 'contestants’ witnesses (relatives by-blood and marriage) who were in a position to know the mental condition of testator in 1950 established nothing more than old age, lack of neatness, bladder trouble, grief over the death of his wife and occasional forgetfulness. Testator’s daughters testified positively as to his incompetency; Manila Ligón, a niece of testator’s deceased wife, testified that in .May, 1950, Meadors told her that he had to quit *342 going out to the cemetery because “I just expected Sadie (his deceased wife) to come and get in the car and she never would get in the car, and I. wanted her to come home with me”. Jack Ligón testified in the spring of 1950 testator would not recognize him, although he had been a frequent companion of testator. It is impossible to read and digest even the printed record of evidence in this case and conclude that there is not a great abundance of evidence establishing lack of testamentary capacity, and under the decisions of this court to the effect that the trial judge determines the truth and veracity of conflicting evidence, it is impossible to write a logical opinion upon all of the evidence in the record and conclude that the judgment of the trial court is against the clear weight thereof.
The majority opinion sets forth a written hospital record diagnosis of Dr. Walker Morledge dated July 8, 1950, wherein Dr. Morledge diagnosed testator’s condition as very senile, and suffering from arteriosclerosis — cerebral type. Morledge did attempt to void this highly important and credible documentary evidence by saying he later changed his opinion. But the District Judge, who saw the witness and heard his testimony, did not believe the feeble attempt of Morledge to change his opinion. Certainly the trial judge was in the best position to ascertain the credibility of the tes-, timony of Morledge, particularly when Morledge on cross examination admitted that the only manner in which Morledge could testify as to the condition of testator was from the written record made by him. Morledge testified as follows:
“Q. Now, as a matter of fact, ■Doctor, the only thing you know about C. F. Meadors, anyways near the time . he made this will, was that diagnosis . that has been called to your attention in St. Anthony’s Hospital.? Isn’t that right ? A. That is, as far as I remember.
“Q. That’s all you know ábout it? A. (No reply).
“Q, And, as a matter of fact, you testified last spring, on March 17; 1953, you testified that you didn’t know a thing about him prior to 1950; and nts>w the only thing you know about him is in that hospital record. Isn’t that right? A. Yes, sir.”
The District Judge in his decision said',, in part:
“And then the record Doctor Mor-ledge made. I am inclined to agree with Mr. Johns. You know, when a doctor has got his hand on a patient’s, heart, feeling his brow, looking at him, that is when he is more likely to make a record that speaks the truth. * * * ”
Dr. John Roddy testified that testator was; suffering from hardening of the arteries or arteriosclerosis prior to May, 1950. He also testified that Meadors was in the same mental condition in May, 1950, as when he saw him around the first of July when Mea-dors was in St. Anthony Hospital. The evidence is uncontradicted that Meadors did not have testamentary capacity in July, 1950. Dr. Basil Hayes testified he did not. know the mental condition of Meadors in May, 1950. But on July 10, 1950, Dr. Háyes. made a hospital record concerning testator in St. Anthony Hospital, as follows :
“7-10-50, Order, Dr. Hayes, Place sideboards on bed.”
Every medical fact established herein-corroborates the medical diagnosis of Dr. Morledge on July 8, 1950. It follows that when a progressive disease of the mind is. once proven (as in this case arteriosclerosis —cerebral type), it is then established conclusively that such infirmity has existed for a considerable period of time prior thereto. See Bever v. Spangler, 93 Iowa 576 , 61 N.W. 1072, 1078 .
•The question here presented is not whether the printed record of certain testimony-of certain witnesses appears persuasive but whether all the evidence shows clearly and!, unmistakably that the judgment of the District Judge is contrary to the great weight thereof. If the evidence is conflicting, presenting evidence upon which the District. Judge could believe either side, it is the duty of this Court to affirm the decision of the- *343 District Judge. In Skirvin v. Skirvin, 177 Okl. 480 , 60 P.2d 765, 768 , this Court said:
“Upon reflection it must be concluded that the trial judge is in a better position to determine which of the witnesses has spoken the truth. The trial judge sees the witness and observes his demeanor and mann'er of answering questions upon direct and cross examination. It is difficult, approaching the impossible, to read the written report ■of conflicting oral testimony and say that this is false while that is true.”
But, in addition to the impelling reasons above given, .the record of this Court in this case speaks convincingly that the judgment of the District Court is not against the clear weight of the evidence. This cause was fully briefed, and argued orally to this Court of September 21, 1954. On November 16, 1954, an opinion was promulgated by this Court affirming the judgment of the trial court. Thereafter, a petition for rehearing was filed with briefs. A response was called for on November 30, 1954. On December 10, 1954, a response and brief in support thereof was filed. Aft-«r full consideration the petition for rehearing was denied on June 7, 1955. On the .same day, June 7, 1955, a Justice of the Court originally dissented to the opinion of November 16, 1954, changed his vote from •dissent to concur, thereby adopting as his views those expressed in the original opinion of November 16, 1954, affirming the decision of the Trial Judge holding the identical decision in this case was not clearly .against the weight of the evidence. Now the author of the opinion of this Court, as presently constituted, holding directly the .converse of his vote and decision of June 7, 1955. How can it be said the decision of the Trial Judge is clearly against the weight of the evidence when the author pf the .present opinion originally decided the case one way, then a few months later changed his decision and now, upon second petition for rehearing, changes his decision again? Certainly, if the conflicting evidence in the printed record would cause the author of the present opinion to decide the case both ways, it cannot be said logically, that the decision" of the trial judge in this cáse is against and contrary to the clear weight of the evidence.
In that circumstance alone there is a demonstration that this is a difficult case on the facts, or a very close case on the facts, or in other words, that it is very difficult, just from reading and re-reading the record, to tell where the preponderance or the weight of the evidence is. That definitely demonstrates that seeing and hearing the witnesses 'must have been impressive to the trial court. Here is certain demonstration that whichever way the trial court had found, could nót be said to be clearly against'the weight of the evidence.
Mr. Meadors was divorced from his first wife, the mother of his two daughters, many years ago; a'nd within a few years he married another woman whom he lived with for some 52 years, until she died in 1949. There were no children born of the second marriage. It appears from the record that he was a man of exceptional ability. He knew, after he was divorced from his first wife, and before he married again, if he died without making a. will all of his property wotild go to his two daughters, and after his second marriage he knew if he died without making a will, one-third of his property would go to his wife, and the other two-thir.ds to his two daughters. Then when his second wife died in 1949, at a time when he was competent to make a will, he knew if he died without making a will 'all his property would- go to his daughters. This situation continued from 1949 to May 5th, 1950, at a time when he was in very bad health as reflected by the direct testimony of witnesses who testified in the case to the effect that he" was not competent to make a will on that date. The trial judge held that no valid will was ever executed. I cannot agree under the facts and cir'cum-stances in this case, that the judgment of the trial court is against the clear weight of the evidence.
I therefore respectfully dissent.