188 N.E. 395 | Ohio Ct. App. | 1932
This is a proceeding to contest the will of J.E. Kester, deceased. The amended petition of plaintiff in error, Rose Steinle, who was plaintiff in the lower court, sought to set aside the will, which had been duly probated, upon the ground that it was not the last will and testament of said J.E. Kester.
An issue was joined and the case was submitted to a jury with the result that the jury unanimously sustained the said will.
Motion for new trial having been filed and overruled, error is prosecuted to this court.
In brief it appears that J.E. Kester died in July, 1931, without any children surviving him, but leaving his widow, Etta M. Kester, one of the defendants in error; that a few days after the death of J.E. Kester his said widow, together with Mr. Marchal, went to the Greenville National Bank, that being the bank in which Mr. Kester transacted business during his lifetime, and upon examining his safety deposit box discovered a will which had been made several years before. This will was taken by the said widow to her home, and, several weeks afterward, when examining some of the papers and effects of her husband which were contained in a trunk belonging to the decedent at his home, another will of later date was discovered. The will so found in the trunk belonging to the decedent is the will which was offered for probate, and *247 was duly probated by the probate court of Darke county, Ohio. The will found in the safety deposit box of decedent was destroyed. The contents of the two wills were in certain respects somewhat similar. The storm center of this case revolves around the genuineness of the signatures to this later will, including the genuineness of the signatures of the witnesses to the will.
Much testimony of an expert nature was introduced in reference to the genuineness of such signatures.
Counsel for plaintiff in error in their brief rely solely upon two grounds for a reversal of this judgment.
The first ground is that the verdict of the jury was contrary to the weight of the evidence.
This is not made one of the grounds of error in the petition in error. An examination of the motion for a new trial filed in the lower court also discloses that the weight of the evidence was not made a ground of error in the lower court.
Notwithstanding this state of the record, we have examined the testimony, and upon such examination are clearly of opinion that a reviewing court would not be justified in disturbing the verdict on the ground that the same is against the manifest weight of the evidence. There is a sharp conflict in the testimony in reference to the genuineness of the signatures on this last will. There is ample testimony in the record to support the finding of the jury that such signatures are genuine, if the jury believed certain testimony. The special finding of fact made by the jury supports the conclusion that the jury did believe the testimony which tended to show the genuineness of the signatures in question.
If the weight of the evidence is before us, we do not feel warranted in disturbing the verdict of the jury upon that ground. *248
The second error complained of relates to the refusal of the trial court to give a special instruction in advance of the argument.
The special instruction requested and refused is as follows:
"The Court further charges you that if you find from a preponderance of all the evidence that the signature of one or both of the subscribing witnesses to the alleged will of J.E. Kester is not the genuine signature of either F.M. Wolf or of Charles J. Herr, then your verdict must be that the paper writing involved in this case is not the valid last will and testament of J.E. Kester."
This special charge was refused by the trial court because of its failure to incorporate the presumption arising from the probate of the will.
If the charge as requested contains a correct statement of the law, then plaintiff in error was entitled to have same given prior to argument of counsel, and failure to so do would constitute prejudicial error. This rule is well established and does not require citation of authorities.
Section 12083, General Code, provides that, "On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil."
We have italicized three words solely for the purpose of emphasizing the issues upon which the order of probate shall constitute prima facie evidence. Such order of probate is primafacie evidence of the attestation as well as the execution and validity of the will.
In the case of West v. Lucas,
"Instructions by the trial court in a will contest must clearly define the rule that the evidence introduced by contestant, in order that he may prevail, must be a preponderance, outweighing both the evidence *249 produced by the contestee and the presumption of validity that arises from probate of the will."
See, also, case of Hall v. Hall,
From a consideration of the authorities we are of opinion that the trial court properly refused the instruction requested, for the reason that such instruction failed to recognize, or rather to include, the presumption as to the due attestation, execution and validity of the will arising from the probate thereof.
Finding no error in the record in the respects urged by counsel for plaintiff in error, the judgment of the lower court will be affirmed.
Judgment affirmed.
ALLREAD, P.J., and HORNBECK, J., concur.
