In Re Estate Johnson

OLNEY, J.

This is an appeal from an order appointing one Mary T. Hiatt as the administratrix with the will annexed of the estate of the decedent. The appeal is taken by the surviving husband of the decedent, who himself had petitioned for letters and whose petition was denied.

[1]

As the surviving husband of the decedent he was entitled to letters in preference to anyone else, unless he were incompetent on a statutory ground of incompetency. One such statutory ground is a “want of understanding,” and the lower court found that the appellant was incompetent on this ground. The sole point presented on appeal is as to the sufficiency of the evidence to sustain this finding.

We have stated that the sole question is as to the sufficiency of the evidence to sustain the finding mentioned. This, perhaps, is not an exactly accurate statement of the position of appellant’s counsel. That position, as stated by counsel, is that the sole question is as to whether or not appellant’s lack of understanding was established by a

preponderance of the evidence.

But the question of preponderance of evidence is one exclusively for the tribunal whose function it is to try and to determine the question of fact. It is not a question for the appellate tribunal.

[2]

If there was sufficient evidence to justify the finding, it cannot be overturned on appeal, no matter what the views of the appellate court may be as to what conclusion it would

[644]

have reached as to the preponderance of evidence if it had been trying the fact.

[3]

Counsel for appellant seem to have the impression that this is changed by the circumstance that there exists a

prima, facie

presumption of mental capacity. But this presumption merely operates to throw on- the party claiming that mental capacity is lacking the burden of proving that fact. It does not change the rule that if the trial tribunal, court or jury, as the ease may be, finds that the fact is' proven, such finding cannot be disturbed on appeal unless there is no evidence to support it, or it is plainly contrary to 'the evidence.