Daly v. Wedemeyer

Nonsuit—Nature of Motion—Question of Law—Demurrer to Evidence.—A motion for a nonsuit, to prevent the submission of a case to the jury, presents a question of law for determination by the court. The motion is equivalent to a demurrer to the evidence, or an objection that, admitting all of the proved facts to be true, they do not in legal effect operate in favor of the plaintiff or entitle him to the relief asked for by him.

Id.—Effect of Evidence—Prima Facie Case—Motion to be Denied. The evidence on a motion for a nonsuit,. at the close of the plaintiff’s ease must be given its full probative force, whether it has been erroneously admitted or not; and on such motion the evidence must be taken most strongly against the defendant; and if the plaintiff has introduced proof enough to make out a prima fade case under his pleading, the motion for a nonsuit at the close of his case should be denied.

Id.—Proceeding to Contest Will—Bules of Nonsuit in Civil Cases Applicable.—In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestant is sufficient to require the submission of the case to the jury, the same rules apply as in civil eases. Every favorable inference fairly arising from the evidence produced must be considered as proved in favor of the contestant; and where the evidence is fairly susceptible of two constructions, the court must take the view most favorable to the contestant; and if there is any substantial evidence tending to sustain the contest, the contestant is entitled to have the ease go to the jury upon its merits, and a nonsuit is improper.

Id.—Contest by Mother of Will to Stranger After Probate—Un- ' due Influence—Improper Nonsuit.—Where a will in favor of a stranger was contested after probate by the mother of deceased, for undue influence, and the evidence shows that he went to live with such stranger, while ill and weak in body and mind, to be cared for by her, and while on his way thither with a friend, he requested him to prepare a will to give his poultry to her for her care, and his farm to his mother, brothers and sisters in Ireland, and when he came to see him the next day to talk further about the will he found him unconscious, and previously said stranger had sent for an attorney to prepare a will in her favor, and after the friend had left for inability to talk with him the will so prepared was executed, and the deceased died the next day, in view of such facts, and other facts and circumstances in proof, the inference is fairly deducible that deceased did not execute the will of his own volition, but by her influence over Ms debilitated mind; and a nonsuit of the contestant was improperly granted.