18 Ohio App. 412 | Ohio Ct. App. | 1924
The action below was to contest the validity of the will of Samuel J. Irvin, deceased.
The defendant in error, Velma Brunk, who was plaintiff below, was the daughter and only child of the said Samuel II. Irvin, deceased, and brought suit to set aside the will of her father. Both the
Several grounds of error are urged, the main question being the weight of the evidence, which we will first consider.
Many witnesses were introduced and fully examined on behalf of the contestant, and on behalf of the eontestees. That the case was fully tried is attested by the bill of exceptions, some seven hundred pages. It would be impossible in a memorandum opinion of reasonable length to go fully into a discussion of the evidence, in view of its volume and the character thereof, and it would serve no good purpose to record it in an opinion. We will, therefore, but touch upon some of the salient features of the evidence.
On behalf of the contestant, there was evidence introduced to the effect that the testator at the time of his marriage to the mother of contestant, in 1889, was of a morbid, depraved mentality; that at the time of the birth of his daughter, the contestant, he sought her death through the mother, but later became very much attached to her; that he was at all times of a sleepless, nervous, vicious disposition; that he made a practice of associating with lewd women, and boasted of the same to his wife; that in 1904 he became afflicted with the disease of syphilis, which increased his nervous and
The will left the daughter, the contestant herein, a legacy of $1,000. All the rest of his property was left to his father, mother, brothers, and sisters, and their heirs.
Immediately following the testator’s restoration to his legal rights, his wife, the mother of the contestant, filed an action for divorce, and later secured an absolute divorce from him. At the time of the divorce there was a settlement of alimony out of court. About two years later he committed suicide by hanging.
There is evidence to the effect that the father of the testator exercised a great deal of influence over him, as did his mother; that in the spring of 1918 testator turned against his wife and the husband of his daughter, the daughter having married just prior to that time. There is evidence that the marriage of the daughter at the time it
There was expert evidence to the effect that under the conditions testified to testator could not have been of sound mind at the time of the execution of the will, and would be a person easily influenced.
The contestees called many witnesses, substantial people in the community, who testified to the effect that they had known testator for some years, 'and had had business transactions with him, and thought he was of sound mind. Counsel who prepared the will, and witnessed the same, testified likewise.
It is argued that the fact that the testator cut the daughter off with a comparatively small legacy is entirely consistent with a sane mind, for the reason that the daughter had testified in a trial of a case in court that her father was a thief.
“Q. Did you ever from the witness stand, under oath, say that your father was a thief? A. No, sir. I never called him a thief. * * *
"Q. And wasn’t this question asked you: ‘What happened? A. He (meaning your father) got mad at Oris because he wouldn’t steal the can.’ Did you answer that way? A. I don’t remember. * * * !
“Q. "Was he a thief? |Do you say he was a thief? A. No, I don’t say he was a thief.
"Q. You were asked if he wasn’t a thief, wasn’t you? A. Judge West put that question in my mouth and I couldn’t get around it.”
There is nothing to show; that when she was testifying in behalf of her husband, she was not telling the truth. If her testimony was • truthful, and it left an inference against her father, and he thereupon turned against her, this would but add to the proof of an abnormal mentality of the testator. Placed as she was, between loyalty to her husband, in whose innocence she believed, and natural affection and regard for her father, she was in such
This brief statement of the salient features of the evidence shows clearly that the result of the! case resolved itself largely into a question of the credibility of the witnesses.
If the jury believed all of the evidence submitted by contestant, it would be fully justified in returning the verdict that it did. On the other hand, if it believed the evidence of the contestees, that at the time of making the will testator was of sound mind, its verdict must necessarily have been to the contrary.
The rule is that unless the record shows clearly and satisfactorily that the judgment is manifestly against the weight of the evidence, the judgment will not be disturbed. In this connection, the credibility of the witnesses cannot be considered. Where the evidence is merely conflicting, the question is one for the jury, and its judgment will not be disturbed. Krell v. Krell Piano Co., 14 Ohio App., 74, 79. Applying the rule, we cannot say that the verdict and judgment were manifestly against the weight of the evidence, and this question of error must be resolved against the plaintiffs in error.
It is suggested in the brief of plaintiffs in error that the testimony of the divorced wife of the testator, who was one of the main witnesses for the contestant, was improperly admitted, for the reason that the matters testified to by her were privileged communications under the statute (Section 11494, General Code) which provides that a husband or wife shall not testify “concerning any communication made by one to the other, or act done
No doubt a great deal of evidence given by the mother of the contestant could have been excluded on this ground, but the record fails to disclose any objection whatever to the competency of the mother as a witness. The record discloses some few minor objections on the ground of hearsay, or on the ground that the question was leading, and objections to statements by the witness as to what she did in the absence of the testator, all of which are without substance and could in no way affect the result of the trial or raise the question of privileged communication.
There is nothing in the record to show that the communications were not made or the acts not done in the known presence of a third person competent to be a witness.
It is apparent from the record that many of the things said and done to which the mother testified were in the known presence of third persons, competent to be witnesses. It was the duty of counsel under these circumstances to make their objections on the ground that the communications and acts attempted to be proved were privileged. The court would then have required the plaintiff to bring the witness within the requirement of the statute. Westerman v. Westerman, 25 Ohio St., 500; Geauga Iron Co. v. Street, 19 Ohio, 300; Patterson v. State, 96 Ohio St., 90.
Some complaint is made against the charge of the court in that the court in enumerating to the jury the claims of the contestant used the language, “an unwarranted aversion and dislike on the part of the deceased for plaintiff, his daughter, and her husband.” The claim is that this statement is unwarranted from the evidence; that the evidence with reference to the daughter showed the contrary. The following acts of the testator concerning the daughter are in the evidence: That after October, 1918, he never spoke to her, nor she to him; that he never went to see her in her new home after her baby was born; and that she did not go to see him or receive any communications from him; and that, as testified to by Judge Clevenger, he complained against her.
These, and other things not enumerated, fully justify the statement. There was no error in this language of the charge.
Some other technical questions are suggested in the brief, but they are without substance.
We find no prejudicial error in the record and the judgment will be affirmed.
Judgment affirmed.