The witness Gallenstein, now a Railway Mail Clerk, a fellow worker with decedent up to the time of his death, seeing him every day, testified testator was the best salesman the Company ever had, and he had declared to him on three or four occasions that his first wife and boys had taken his fruit business away from him, robbed his bank box, and if he made a will he didn’t want them to receive any part of his estate.
One of the plaintiffs saw his father about ten days before his death and testified he was sober, well dressed, apparently in good health, and was making a business call on the same customer as the son at the time.
There is much conflicting testimony in the record, from which different inferences might be drawn, as to whether or not the second wife generally had an influence over testator, frustrating a desire to return to his former family. Also, the record reveals many inconsistencies in action on his part from his quoted statements concerning his feelings for both his original family and the second wife, and made while both drunk and sober. It, therefore, seems a jury question is presented.
From a careful consideration of the whole record, however, we conclude that the evidence is insufficient to justify a finding of lack of testamentary capacity or undue influence and that the verdict is therefore, manifestly against the weight of the evidence, and the judgment is reversed.
