The opinion
*47 ON APPLICATION FOR REHEARING
Decided March 28, 1934
By THE COURT
Submitted on application of defendants in error for rehearing. The application consists of three headings which we consider in order.
It is claimed that this court was in error in holding that the general charge to the jury did not sufficiently state the extent to which the plaintiff below bore the burden of proof. Extensive reference is made to the bill of exceptions. This ground of error was not urged by the petition in error nor by counsel for plaintiffs in error in their briefs but inasmuch as the case was to be tried''again we thought it advisable to call attention to the particular wherein we felt the charge upon re-trial could be strengthened.
The second heading of the application is as follows:
“Because, if the general charge was, as we submit, correct, the other ground of reversal, namely, because of the violation of the Hearsay Rule in the admission of testimony, is no ground for reversal, the case being a two-issue case to which this court has said at page six of its recent decision: ‘The two-issue rule applies, * * *’ and the hearsay testimony excepted to applies to but one of those two issues, namely: the question of testamentary capacity, and not to the other of the two issues: that of undue influence, which we submit is amply sustained by competent evidence.”
The testimony which was declared to be incompetent reached not only the issue as to testamentary capacity but also that of undue influence. It is always pertinent to a charge of undue influence in a will case to show the mental instability of a testator as it may affect his susceptibility to undue influence.
The third heading is:
“Because but two of the three judges of this Honorable Court decided the case, and we submit that we are entitled to the consideration of the full court, and especially in the event' of a reversal.”
If we had based our reversal upon the weight of the evidence, the argument of counsel would be tenable but as it is based upon other errors of law two members of the court concurring would be sufficient in any event.
We regret that the third member of the court could not participate in our decision but his presence could not- have affected the result. .
The application for rehearing will be overruled.
HORNBECK, PJ, and BARNES, J, concur.