¶1On Motion for Rehearing
¶2Plaintiff urges that we erred in the last paragraph of our opinion that by his introducing, without limitation or qualification, the contested will with the order probating it and proof of will, he was bound thereby. Since our holding as indicated is not necessary to the disposition of the case, we withdraw this paragraph of our opinion.
¶3Plaintiff also urges that we erred in not holding the issues of fraud and undue influence were raised sufficiently to be submitted to a jury, and sets out nine items, each of which he contends, raises or tends to raise the issues. We have, however, examined again the statement of facts and believe our original opinion sufficiently sets forth the facts involved, but we will comment on the first item suggested by plaintiff. In this he says that the tract of land left by the will to defendant Mary Ella Smith was a tract that testatrix owned no beneficial interest in, although she held the bare legal title thereto, and that it belonged to the heirs of A. T. Vincent. The testimony on this point appears to be hearsay, confused, and the identity of the land doubtful. But, be that as it may and if it is assumed that plaintiff is right that testatrix did not own the land, it is not apparent how this would aid him in showing fraud or undue influence practiced by any of the defendants. It was not shown whether Mary Ella Smith or other defendant knew that testatrix' title was a bare legal one nor whether testatrix had ever so recognized it. This fact, if it is a fact, could as well, if not better, be shown by plaintiff with the legal title in Mary Ella Smith than if it had remained in the estate of the deceased. We do not see its materiality on the question before us.
¶4The motion for rehearing is overruled.