Adams. Exr. v. Foley

173 N.E. 197, 36 Ohio App. 295, 9 Ohio Law. Abs. 100, 1929 Ohio App. LEXIS 534
CourtOhio Court of Appeals
DecidedApril 9, 1929
StatusPublished
Cited by3 cases

This text of 173 N.E. 197 (Adams. Exr. v. Foley) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams. Exr. v. Foley, 173 N.E. 197, 36 Ohio App. 295, 9 Ohio Law. Abs. 100, 1929 Ohio App. LEXIS 534 (Ohio Ct. App. 1929).

Opinions

Houck, J.

Plaintiffs in error were the defendants below and the defendants in error were the plaintiffs.

On the 16th day of September, 1926, William Foley and others, infants, by their next friend, S. A. Foltz, filed their petition to set aside the will and codicil thereto, averring among other things that: “A certain writing purporting to be the last will and testament of Hanorah Foley, bearing date of February 20, 1926, and a codicil added thereto of the date of March 26, 1926, was admitted to probate by the Probate Court of Richland county.” Plaintiffs below prayed for -an order that an issue be made up.

The defendants filed no answer.

The court made up an issue on the journal, in the following words and figures, to wit:

“It appearing to the court that the plaintiff in this case seeks to set aside a certain paper writing purporting to be the last will and testament of Hanorah Foley, late of the county of Richland, deceased, which has been admitted to probate according to the statute in such case made and provided, and no issue being made by the pleadings, it is now ordered that *297 the validity of said will be, and hereby is, put in issue between the parties, and that it be ascertained by the verdict of the jury whether said writing is the last will and testament of said Hanorah Foley or not.”

Trial was had, the jury found for the plaintiffs below, the trial judge overruled a motion for a new trial, and from the judgment entered on the verdict error is prosecuted by plaintiffs in error, who seek a reversal of the judgment so entered and predicate same upon three assignments of error:

(a) Error in the admission of evidence.
(b) Error in the general charge of the court.
(c) That the verdict and judgment are against, the manifest weight of the evidence.

The bill of exceptions contains more than four hundred pages of closely typewritten matter, which required some time to read and analyze. Under the assignments of error it was necessary that the court read with care the record before us, hence the seeming delay in reaching a conclusion in the case.

As to the claimed error in the admission of evidence, we do not deem it necessary to set out the evidence objected to. The record shows that the trial judge stated to the jury, at the time, the purpose for which the evidence was admitted, and we hold the court, in doing so, committed no error of a prejudicial nature.

Courts are bound to exercise discretion in the admission of evidence. While the materiality of the evidence sought to be excluded may be questioned, yet in order to be prejudicial it must not only be material to the issues to be determined, but erroneous as well, and we do not find both of these elements in the admitted evidence.

*298 If evidence is competent for any purpose, it is admissible. Cleveland, Columbus & Cincinnati Rd. Co. v. Terry, 8 Ohio St., 570, 580; Pennsylvania Co. v. Mahoney, Admx., 22 C. C., 469, 12 C. D., 366.

"Was there error in the general charge to the prejudice of the plaintiffs in error?

Counsel for plaintiffs in error say that nowhere in the charge as given to the jury by the court is there any mention of the' codicil and that such omission is reversible error. They further urge that the proper issue to be submitted under the facts to the jury was whether or not the writing produced was the valid last will and codicil of Hanorah Foley, deceased.

The record discloses that the petition of plaintiffs below, by proper averments, sought to set aside the will and codicil; that on the trial the defendants below, the plaintiffs in error here, offered in evidence the record of the probate court, showing that the will and codicil were admitted to probate; that in the trial evidence was offered as to both will and codicil; that the judgment entry was approved and signed by counsel on both sides, as the final judgment in the case in the common pleas court; the same being as follows:

“This day came the parties hereto by their respective counsel, and the jury having, on a former day at a former term, rendered a verdict for the defendant, finding that said paper writing purporting to be the original last will and testament and codicil of Hanorah Foley, and admitted to probate in said Probate Court of this county on the seventh day of October, 1926, is not the valid last will and testament and codicil of the said Hanorah Foley, deceased, and *299 the defendants having filed their motion to set aside the verdict and for a new trial, and the same coming on now to be heard, after argument by counsel, the court on consideration thereof overruled said motion.
“It is therefore adjudged by the court that said paper writing produced in this case and offered in evidence, purporting to be the last will and testament and codicil thereto of Hanorah Foley, deceased, is not her valid last will and testament, to which ruling and judgment and the order and judgment overruling the motion to set aside the verdict and for a new trial the defendant excepts.
“It is further ordered and adjudged that the defendant pay the costs herein taxed at $........, to which order and judgment the defendant excepts.”

It will be noted that only a general exception was taken to the general charge by the defendants and no requests to charge either before or after argument were made by counsel on either side.

The codicil in question was not dispositive in effect and only concerned the naming of an executor.

As to the definition of the terms “codicil” and “last will and testament,” see 1 Alexander on Wills, pages 25 and 26:

“A codicil is a supplement to a will. Its derivation is from the Latin codicillus, a diminutive form of codex, thus representing a small will. It must be executed with the same solemnity as a will. It is added to the will after its execution, the purpose usually being to alter, enlarge or restrain the provisions of the will, or to explain, confirm and republish it. It does not supersede the will, as an after made will would do, but is a part of it, to be con *300 strued with it as one instrument. It is not a revocation of the former will except to the extent that its provisions are inconsistent with it, unless the intent to revoke be expressed.
“The term ‘testament’ is of Latin origin, from testamentum, or testatio mentis, or testor, according to varying authorities, but the conflict of opinion is immaterial since the ultimate meaning evolved is that in final testimony of a party, or his declaration of intention or will. Testamentum or testament is the term we find exclusively used in the old Civil Law and by its early writers. The expression ‘will’ is of English or Saxon origin and its use is confined to those countries where English jurisprudence prevails either directly or as the foundation of the law.

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Bluebook (online)
173 N.E. 197, 36 Ohio App. 295, 9 Ohio Law. Abs. 100, 1929 Ohio App. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-exr-v-foley-ohioctapp-1929.