In Re: Estate of H. Lee Sharp

—It appears that this cause was tried both before the County Judge and the Circuit Court upon a wrong theory.

No question as to the testamentary capacity of H. Lee Sharp was involved. Indeed it may be said that his capacity in that regard was not only presumed but admitted. The point involved in the controversy was not one of undue influence nor of testamentary capacity but whether the document filed with the Probate Judge for probate was in the circumstances in which it was made a will in fact.

The caveator, Clarence Sharp, contends that the document was not a will, first, because in the…