West v. Lucas

139 N.E. 859, 1 Ohio Law. Abs. 72, 106 Ohio St. 255, 1922 Ohio LEXIS 243

Opinion

HOUGH, J.:

1. 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 produced by the contestee and the presumption of validity that arises from probate of the will.

2. Failure in a general charge in a will contest case to restate, in connection with the instructions relating to testamentary capacity and undue in influence, that the presumption arising from the probate of the will must be taken into account and weighed according to its proper proportionate value as part of the whole evidence in arriving at a preponderance, is not prejudicial error, where the special finding of the jury is in all respects consistent with the general finding and clearly shows justification for the verdict returned on the issue of “want of execution,” where proper instructions in that respect were given in the part of the charge dealing with that subject.

Judgment reversed.

Marshall, C. J., Matthias and Clark, JJ., concur. Wanamaker, Robinson and Jones, JJ., concur in the judgment.