*1 Patterson, roy, Jr., Medley, support him in so Dave H. C. evidence George Jones, Lethco, Peeler hold that Nelson finding. further Asa We appellants Mathews, justified restraining and Richard court Hoefs. modify attempting to modifying or points appellants All are accord- the air any over or clouds weather overruled, and, modi- ingly the above space over lands fication, of the trial court affirmed. tem However, find that we do court injunction granted

porary terms, pur in that broad in was too ABBOTT, J., sitting. any activ appellants from ports to restrain in the area ity with reference injunc

“plaintiffs’ The trial court’s lands.” restrain is, therefore, modified so therein

appellants from activities ap- lands of they apply

scribed

pellees. urged that

Appellants VINCENT, Appellant, have County did the District Court of Davis Jeff defend because the jurisdiction, not have al., Appellees. Alec VINCENT et ant-appellants either Pecos resided Coun-y No. 6191. County. ty or Harris overrule forth; namely, point for the reasons Appeals Court of Civil of Texas. appellants the trial court found Beaumont. ap- infringement guilty have 18, Dec. 1958. pellees’ rights” “natural in their lands 14, Denied Jan. 1959. course actually of their lands. Of any damage to land involving county land lies.

brought where the Duncan testified that Mr.

It will be recalled precipitation depended upon forage live for his

produce the food and Dallas, 111 City Tex. Spann v.

stock. However, do believe we 235 S.W. 513. appellants’ objections that much appellees about which

apply to lands of good, been no We make sustained. have been feel that

holding because we prohibit adequate in the absence lands seeding over

cloud be, been, or would that such the wit-1 according to the

done landowner.! damage

nesses, is dismissed

Therefore, injunction applies any lands insofar as dissolved Loving Terrell, Culberson, Winkler and dis dismissed further

counties, plaintiff-appellees respect to all solved with McEl- Gray, Walter Ted Messrs.

excepting *2 plaintiff, Mary

the Ella sister husband, Sully plaintiff, the' Vin- plaintiff cent, LaFosse, Evita a cousin joined by husband, defendants, and de- plaintiff scribed the heirs and defendants as deceased, law of setting alleged grounds The for probated first, aside the will as was through undue influ- was executed ence Smith second, Vincent, and Alec since deceased could neither write and only speak could language, the French that neither of witnesses French, speak could not legally was The contest was executed. appeal County denied was Court and properly Court where taken to the District court, a jury, and the plaintiff’s the conclusion of oral defendants, gave peremp- motion tory against plaintiff, instruction ren- judgment sustaining dered de- nying the contest.

The brief point, contains one which both asserts influence and undue fraud of defendants, Mary Ella Smith and Alec Vin- cent, and because the will was not executed with the required, formalities granting peremptory instruction was improper. Arthur, appel- Long, for Port

Shelby K. The must be viewed in this lant. standpoint court from the most favorable Beaumont, Dryden, Sonfield, W. E. Geo. plaintiff. Brower, Klinksiek v. Civ.App., 289 S.W.2d 805. The shows Elida owned McNEILL, farm some land near Stowell in Justice. Jefferson County, Texas. She awas sister-in-law plaintiff, appeal anis This of A. T. the father of the against instructed verdict and three of the A. T. Vin Coun- him in the Jefferson cent, passed away looked after ty. many years. Elida affairs for Faulk’s She brought by plaintiff write, spoke neither read nor The of the will probate understood French language. aside petition filed last 15 or before her death Faulk, deceased. in 1951 living made beneficiaries she the de wit, brother of fendant Smith husband on of 40 neighborhood mentioned. land above acres tract of the same A short LaFosse, to live. Evita where she and whatever else T. death she equally was left while after A. Vincent’s three *3 husband, fendants, Alec Vincent, Mary her neph Sully prop her give person (cid:127)came Beaumont where she met To to Vincent. n ew, erty E. upon B. whose preferably Alec and called home has lived Quinn for IS desired deceased or 20 stated that the an .unnatural bequest. to them Tex.Civ.App., to a will. He referred v. Bailey, make Morris lawyer, 16 ‘George Sonfield, M. thing S.W.2d 311. a Beaumont to natural Mr. person prone help do. A whose was next door to is office those who that.of to n Quinn. They help Sonfield nothing went Mr. him. then to There that indicates interpreters, defendants, Sully .and Evita LaFosse or Alec Ella Smith and knowledge making will until of the beneficiaries after ex sometime ecuted. plaintiff says informed Mr. of her desire Sonfield that other nephews nieces and have the to gave him informa same to a will and make expect bounty pre as do the ones will in deceased he drafted the ferred. kin day Collateral not natural ob parties Later that returned volved. jects bounty. Feigon, Naihaus v. office and Mr. Sonfield read Civ.App., 244 (Ref. N.R.E.); will, through S.W.2d 325 inter explained same Gray’s Estate, In re Tex.Civ.App., appeared 279 preters, S.W. who N.R.E.). 2d interpre as the understand as he section, her, by ters would inform section signed

(cid:127)of the will. She then the contents of Nothing in the record indicates that presence the will her cross mark easily the deceased was influenced or that n Sonfield, brother, L. his R. either of the strong defendants were willed Quinn, witnesses. and B. E. any way attempted or in con- exercise husband and Smith and question, trol over her. stripped when person pres and another were also Vincent of its details, unessential raised in rec- that ent at the time. The record shows ord seems to be this: Is issue of undue could understand neither the Sonfields influence raised virtue of the ben- two of n or speak French. There ain will eficiaries the sole means of to whether the .as witness could so. communication between the deceased and lawyer prepared the will? Is age The record is silent as some evidence of fraud? It be ad- must n deceased death, the time of mitted that apt this could an occasion infirm, sick or she was whether misrepresentation fraud. children, ever married or had been n or mother or survived whether her father But does this alone throw the whole her; no evidence what and there was open assumption wrong that except land which property she ' been could have done when the record rais mentioned value has been above suspicion es no otherwise ? oppor Does an not established. itof was tunity perpetrate fraud create some evi imposed dence that fraud was ? It opportunity that contends held for exercise of un one since unnatural it left the de due influence is no undue influ practiced all property to of her ence was ceased’s unless attended with gave It the land corroborating (cid:127)other circumstances. Olds lived with Traylor, her niece S.W.2d 511 gave Ross, (W.R.); Pullen husband N.R.E.). its ex S.W.2d After af- below is deceased. firmed. ecution the will delivered to ei shows that indi making

ther before after On Motion for prop what cated she wanted to do erty death. or who receive last seems, therefore, only a surmise paragraph of opinion our suspicion present circum troducing, without qualifica- limitation or stances, take and this is insufficient to tion, the *4 pro- contested will with the order jury. issue to the bating proof it and of he bound thereby. Since our Boyles, indicated as v. Russell relies necessary not disposition of the Rounds 29 S.W.2d we withdraw paragraph opin- of our S.W. Coleman, v. ion. believed import. similar cases of clearly distinguishable cases these in not Boyles Russell In the the instant one. holding the issues fraud and undue of part of case the testatrix sufficiently fluence were be sub- attacked. over others children items, jury, mitted to a and sets out nine physically mentally weak She was contends, of each tends he raises or ex- times execution its have, however, to raise the ex- issues. children have all pressed a desire again amined statement of facts case Rounds v. Coleman equally. The share original opinion sufficiently believe our sets old testatrix which the in was one involved, forth the but com- we will financial body, in mind feeble suggested plain- ment the first item beneficiary considered condition says In tiff. this he present In the important factor. Mary Ella the will to defendant poor was some Smith was tract that testatrix owned cousins, condition financial in, although beneficial interest she held shown that legal but thereto, belonged bare title and that it showed knowledge thereof. to the heirs of A. The testi- T. Vincent. mony appears hearsay, of the defendants. point of either on this worth be confused, identity why judg reason another there is But, doubtful. it be and if upheld. court should lower ment is assumed that that tes- plaintiff in land, ap- did not tatrix own the is not evidence the offered parent showing how him this would aid question, along with inis practiced by any fraud undue influence sworn affidavit was not shown order of George M. Ella Smith or other defend- These probating will. knew ant testatrix' title bare was a received offered and instruments legal whether testatrix had ever so limitation qualification or without recognized it. fact, fact, if it is plain being so, purpose whatever. This well, better, if be shown own and instruments his these makes tiff title Freed integrity thereof. for the vouches than if it had remained estate Tex.Civ.App., 304 S.W.2d Bozman, the deceased. We do not see materiality Morris, Tex.Civ. Lock v. N.R.E.); question on the before us. N.R.E.); 287 S.W.2d App., 928, 929. The motion for pp. rehearing is overruled. Tex.Jur.