“The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.”
How later courts described this case
- “The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.”
- party claiming attorney-client privilege has burden of establishing existence of privilege
Written by the judges who cited it.
The opinion
On Petitions for Rehearing.
MORRIS, Chief Judge.
The contestants have presented a petition for rehearing which discusses no points of fact or law that were not carefully considered by this court and covered by the prevailing opinion.
*528 The petitioner and appellant has also filed a petition for rehearing asking for a rehearing only insofar as the scope of our mandate is concerned. It is pointed out that our determination that a new trial is “granted on all the issues” is indefinite and might give rise to a controversy as to whether issues pleaded but not presented at the trial and therefore abandoned might be presented on the new trial. As we emphasized throughout the opinion there were but two questions presented in the trial of the case and urged and argued on this appeal. They were the questions of competency and undue influence. The new trial- which we have ordered will be the third trial of this case on the merits. It was not our intention that issues abandoned on the second trial should he resurrected and presented upon the third. Insofar as our language might be subject to the interpretation that would include issues that may have been pleaded and abandoned, it is hereby interpreted and’ restricted to a new trial of those issues pertaining to the questions of competency and undue influence.
It is further argued that the special concurrence of Judge Johnson “holds that there should be a retrial only upon the issue of undue influence, unless the contestants are able to present newly discovered evidence relating to the competency of the testatrix.” This is a misinterpretation of the special concurrence which, in effect, advises the trial court that our determination of the insufficiency of the evidence with respect to the issue of competency is conclusive upon the trial court unless “it should appear at a new trial that new or additional evidence is available for presentation to a jury upon that question.” This statement is in accordance with the long established rule of this court that a decision holding the evidence to be insufficient to sustain the verdict becomes the law of the case and will control on a new trial or second appeal where the facts are substantially the same. Minot Flour Mill Co. v. Auslander, 62 N.D. 374 , 243 N.W. 750 ; Asbury Hospital v. Cass County, 73 N.D. 469 , 16 N.W.2d 523 ; Desautel v. North Dakota Workmen’s Compensation Bureau, 75 N.D. 405 , 28 N.W.2d 378 ; Huus v. Ringo, 77 N.D. 837 , 47 N.W.2d 216 . See also Dubs v. Northern Pac. R. Co., 51 N.D. 113 , 199 N.W. 191 . The petitions for rehearing are denied.
BURKE and JOHNSON, JJ., concur.