Aston v. Hauck

153 N.E. 277, 22 Ohio App. 430, 4 Ohio Law. Abs. 319, 1926 Ohio App. LEXIS 558

• Court: Ohio Court of Appeals
• Decided: February 8, 1926
• Docket: 2760
• Status: Published

Opinion

HAMILTON, J.

■ The action in the Hamilton Common Pleas was one to contest the will of Mary Giffin. The jury found the instrument to be the last will and testament of Manry Giffin and judgment was entered on the verdict, in favor of Henry Hauck et al.

Harvey Aston prosecuted error from said judgment claiming that the will was not executed according to law, in that there was nothing to show that the will was signed by the testatrix; and that the will was not properly probated because he was without knowledge of probate. The Court of Appeals held:

1. The bill of exceptions does not purport to contain all the evidence offered at the trial.

2. A copy of the will is in the record and this shows the signature to be by mark of the testatrix.

3. In absence of anything to the contrary it must be presumed that the signature was made by the express direction and the mark inserted by testatrix.

4. Aston’s contention of improper probate is disposed of by 69 OS. 176 which holds substantially that by bringing of an action to contest the validity of a will, plaintiffs admit the probate and they will not be permitted to question or deny the regularity of the order of probate on trial.

Judgment affirmed.