The opinion
GUITTARD, Justice
(concurring).
The holding of the majority that a fact issue is raised whenever extrinsic evidence is properly admitted to explain an ambiguity in a will is consistent with the language of the opinions cited, 1 but it seems to me to allow too broad a scope for the triers of facts in determining the testator’s intention. Although this case was tried without a jury, the scope of the fact-finding function would be the same in a jury trial.
To the extent that Texas courts ever allow writings to be interpreted by juries, they depart from the common law. Professor Thayer has pointed out that in England interpretation of a writing, though a matter of fact, was always done by the judge without a jury, and he explains the practice by “considerations of good sense and experience,” since judges were better educated, less likely to give varying interpretations, and more likely to adhere to precedents. 2 Some American courts have adopted the view that if the circumstances are undisputed or established by fact findings, interpretation of a writing is a question of law, since it is within the province of the court as distinguished from the jury and subject to review by appellate courts. 3 This view has been justified on the ground that the trial court’s superior opportunity to observe the demeanor of the witnesses and other factors not fully shown by the record on appeal, which is the reason for the usual rule giving controlling weight to findings of fact, does not apply to the process of determining the meaning of a writing in the light of undisputed circumstances. 4
Texas courts, beginning with Roberts v. Short, 1 Tex. 372 , 384 (1846), have held that where the language of a writing is ambiguous, the court should admit extrinsic evidence to explain it and submit the question of intention to the jury. This practice has been reaffirmed as recently as Trinity Universal Insurance Co. v. Pons-ford Bros., 423 S.W.2d 571 (Tex.Sup.1968). Submission to the jury has been justified on the ground that if it is necessary to ascertain the facts surrounding the execution of a document, the jury should pass on the credibility of the witnesses and the weight to be given the evidence. Taylor v. McNutt, 58 Tex. 71 (1882). This rule has been applied to wills in the cases cited by Justice Bateman. 5
The Texas opinions do not discuss the question of whether a jury issue is presented if the circumstances proved to explain the writing are undisputed or established by fact findings, as in the case now before us. They ignore the substantial possibility *611 that when the circumstances are known the testator’s intention may be so clear that no ambiguity remains. For instance, a legacy may be considered ambiguous if two persons claiming it bear the name appearing in the will, but evidence showing that one claimant was a close associate of the testator and the other was a stranger may be strong enough that reasonable minds could not differ concerning the testator’s intention.
The authority of the cases cited is weakened by the recent decision of the Supreme Court in Stewart v. Selder, 473 S.W.2d 3 (Tex.Sup.1971). There the court rejected the rule followed by some courts that extrinsic evidence cannot be received for the purpose of explaining an “unambiguous” will, and expressly adopted Dean Wig-more’s view that evidence of circumstances may always be received to enable the court to place itself in the position of the testator when he executed the will. 6 If evidence of circumstances is always admissible, it would go too far to say that such evidence always raises a jury question. The language of the opinions cited probably means that an ambiguity explainable by extrinsic evidence raises a jury issue. But if evidence of circumstances is always admissible, it makes more sense to determine the question of ambiguity in the light of those circumstances and submit the question of intention to the jury (or give controlling weight to the trial court’s finding of fact) only if a substantial doubt then remains as to the testator’s intention. The existence of a fact issue should be determined in the light of the extrinsic evidence, not by considering the language of the will alone.
Under Stewart v. Selder, supra, I believe the true Texas rule to be that the intention of a testator is a fact issue if, after resort to extrinsic evidence and all other aids to interpretation, 7 the language of the will is equivocal, that is, it could reasonably have more than one particular meaning. 8 This rule is in accord with the general Texas rule that a fact issue exists when more than one reasonable inference may be drawn from the undisputed facts. Nix v. Davis, 358 S.W.2d 225 (Tex.Civ.App., Houston 1962, no writ).
With this understanding of the fact-finding function, I conclude that the trial court’s finding of the intention of the testatrix is binding on this court. The evidence and the trial court’s findings reveal a true equivocation in the sense that after considering all the evidence, the language of the will may reasonably be interpreted as applying either to American Cancer Society, Texas Division, Inc. or to National Cancer Foundation, Inc. Although the evidence recited in Justice Bateman’s opinion might lead me to find a different intention than that found by the trial court, I cannot say that there is no reasonable basis in the evidence for the trial court’s finding or *612 that it is so contrary to the overwhelming preponderance of the evidence as to be clearly wrong. Therefore, I concur in affirming the judgment.
. Moss v. Helsley, 60 Tex. 426, 438 (1883) ; Haupt v. Michaelis, 231 S.W. 706, 711 (Tex.Com.App.1921, jdgmt adopted) ; Waxier v. Klingemann, 272 S.W.2d 746, 748 (Tex.Civ.App., Austin 1954, writ ref’d) ; Kelley v. Harseh, 161 S.W.2d 563, 567 (Tex.Civ.App., Austin 1942, no writ) ; Brown v. Burke, 26 S.W.2d 415, 416 (Tex.Civ.App., Waco 1930, no writ).
. Tliayer, “Law and Fact’’ in Jury Trials, 4 Harv.Law Rev. 147, 160 (1890).
. Welirliane v. Peyton, 133 Conn. 478 , 52 A.2d 711 (1947) ; In re Melcher’s Will, 246 Wis. 45 , 16 N.W.2d 373 (1944) ; Borclxers v. Taylor, 83 N.H. 564 , 145 A. 666 , 63 A.L.R. 874 (1929).
. In re Melelier’s Will, supra note 3 .
. Supra note 1.
. 9 Wigmore, Evidence, § 2470 (3d Ed. 1940).
. Home uncertainties in tlie intention of a testator can be resolved by a presumption, such as the presumption against partial intestacy and the presumption that tlie testator did not intend to dispose of any property other than his own. Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967). In that case the court said the latter presumption “may only be overcome by language which clearly and without equivocation manifests a contrary intent.” If such a presumption applies, it is difficult to see how the question of intention could be a jury issue. Gf. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513 , 243 S.AV.2d 154 (1951) holding that a contract is ambiguous only when application of pertinent rules of construction leave it genuinely uncertain as to which of two meanings is proper.
.In such cases even evidence of the testator’s declaration of intention outside the will has been admitted. Pruett v. Berkeley, 405 S.AV.2d 433 (Tex.Civ.App., Waco 1966, no writ) ; 9 Wigmore, Evidence, § 2474 (3d Ed. 1940) ; and see opinion in Stewart v. Selder, supra. Ordinarily courts exclude evidence of other declarations of intent by the testator, as distinguished from evidence of circumstances. Heidenheimer v. Bauman, 84 Tex. 174 , 19 S.W. 382 (1892).