Estate of Street

WILBUR, J.

This is an appeal from an order dismissing a will contest and probating a will. ' The will was' contested upon the ground that the same was procured by undue influence. The court tried the case without a jury and determined the issues adversely to the contestant and found that there was no undue influence. Appellant attacks this finding, claiming that under the undisputed evidence there was a clear case of undue influence as a matter of law. With this

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contention we cannot agree. The testatrix was of sound mind, and the question of whether or not the influence brought to bear upon her was so overpowering as to constitute undue influence was peculiarly a question of fact to be determined by the trial court. No case has been called to our attention in which the judgment of a trial court to the effect that there was no undue influence has been overturned by an appellate court upon the theory that undue influence was established as a matter of law. It is unnecessary to detail the evidence presented for our consideration. It is sufficient to say that there was abundant evidence to justify the conclusion of the trial court that at the time the will was executed the testatrix was not acting under the undue influence of the respondent, Julia Street Upton.

Judgment affirmed.

Melvin, J., and Lorigan, J., concurred.