Estate of Ludlow

4 Ohio N.P. 99

• Court: Hamilton County Probate Court
• Decided: July 1, 1897
• Status: Published

Opinion

Ferris, J.

The will of this decedent gave all his property to a niece. The subscribing witnesses were Dr. William Judkins, physician, ajid William S. Little,attorney.for the deceased. Testimony as to the execution of the will, which includes a rigid cross-examination of the witnesses, was submitted to the court, and related to the condition of the testator’s mind at the time he drew the will.

Held: That the burden of proof is upon those propounding the will to make out a prima facie case showing that the testator, at the time of the execution of the will, was of sound mind and memory, and under no restraint or influence, and failing to make out such a prima facie case, the will must be denied probate.

That it was for the court receiving the will to say from the testimony ■of the subscribing witnesses, or other witnesses adduced by those interested in the probate of the will, whether the testator had the necessary mental ■capacity to make a will. '

In the case at bar the court found that under the testimony of the ■subscribing witnesses aprima facie case had not been made out; and that this being a domestic will (citing Barr v. Closterman, 3 C. C. Rep.), it was within the discretion of the court to permit — as had been done — the introduction by those interested in having the will admitted to probate of such other witnesses as they might desire.