
    Aston, a Minor, v. Hauck et al.
    
      Wills — Presumption that signature by mark regularly executed —Contest of will — Jurisdiction and validity of probate admitted by instituting action, when — Insufficient record to review errors assigned — Admission of evidence and charge to jury.
    
    1. Where signature to will is by mark of testatrix, it is presumed, in contest of will, in absence of contrary showing, that signature was made by express direction and mark inserted by testatrix.
    2. Action to contest validity of a will admits probate of will, regularity of order of probate, and jurisdiction of court that made it.
    3. Where bill of exceptions does not contain all evidence, alleged errors in exclusion of evidence, and refusal to specially charge, cannot be considered in error proceeding.
    (Decided February 8, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. J. T. Rhyno, for plaintiff in error.
    
      Mr. W. H. Rucker and Mr. Thomas Usher, for defendants in error.
   Hamilton, J.

The action below was one to contest the will of Mary E. Giffin, deceased. On the trial, the jury found the will to be the last will and testament of the said Mary E. Giffin, and judgment was entered on the verdict. Plaintiff prosecutes error from that judgment.

In the outset it should be stated that the bill of exceptions in the case is very brief, and in narrative form, and does not purport to contain all the evidence offered at the trial.

Plaintiff in error first claims that the will was not executed according to law, in that there is nothing to show that the will was signed by the deceased.

A copy of the will is in the record, and this shows the signature to be by the mark of the testatrix. In the absence of anything to the contrary, it must be presumed that the signature was made by express direction, and the mark inserted by testatrix. Whether or not there was other evidence fully explaining the transaction, we do not know, since the bill of exceptions is not in the form to raise the question.

Plaintiff in error further contends that the will was not properly admitted to probate, in that the plaintiff was without notice of the application for probate. This point is disposed of by the case of Stacey v. Cunningham, Ex’r., 69 Ohio St., 176, 68 N. E., 1001, wherein it is held in the third paragraph of the syllabus:

“By the bringing of an action to contest the validity of a will, under the statute, plaintiffs admit the probate of the will so put in contest, and will not therefore, on the trial of said cause, be permitted to question or deny either the regularity of the order of probate, or the authority and jurisdiction of the court that made it.”

The plaintiff in error makes the further points of the exclusion of competent evidence and the refusal to give a special charge.

In the absence of a complete bill of exceptions, we do not know whether the evidence was competent or material; and neither do we know whether the special charge requested was applicable in the case presented.

We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.

Buchwalter, P. J., and Cushing, J., concur.  