¶1(Dissenting.) I am unable to agree in the bolding of my associates that the trial court was justified as a matter of law in instructing the jury that there was not sufficient evidence to establish that the alleged will in controversy was executed as the result of undue influence practised upon the said Mary Auld. The testimony shows quite conclusively, I think, that at the time of the execution of the will, Mrs. Auld was at the point of death and in a mental condition closely bordering on entire incompetency. In such a condition as this the mind of the testator was peculiarly susceptible to the influence of a stronger will. An influence that at other times might be without effect, in this condition of mind and body might have been regarded by the jury as “undue.” , I believe that all the 'circumstances attending the subscription of the will by the testator should have been submitted to the jury under a proper instruction. Neither the trial court nor this court could usurp the function of the jury to the extent of saying that it might not have found upon a consideration of these facts that undue influence was exercised; and if it had so found, I believe there was sufficient competent evidence to sustain a holding of that kind.
¶2I am of the opinion, therefore, that for error in this particular, the judgment should be reversed and a new trial granted.