
    Rutledge et al. v. Inlow et al.
    (Decided January 14, 1935.)
    
      Messrs. Fitsgibbon, Black & Fitsgibbon, for plaintiffs in error.
    
      Messrs. Kreider & Kreider and Mr. L. Bandies, for defendants in error.
   Lemert, J.

This is a will contest case. The decedent was a woman seventy-four years of age, the widow of Jonathan Inlow, who had preceded her in death about one and a half years. Decedent was the mother of three children, two of whom lived in Licking county, Ohio. One of these boys, Ora M. Inlow, was a tenant on his mother’s farm, under contract with her, for about a year, the tenancy expiring December 1, 1932. The other lived about two hundred yards from his mother’s home. The will in question was dated April 7, 1933. In October, 1932, about a year and a half before her death, these two sons brought proceedings in the Probate Court of Licking county, Ohio, to have their mother adjudged an incompetent. Upon a full hearing the court refused to appoint a guardian for her and dismissed the application. In the will left by the mother she made no provision whatever for either of these sons.

The instant suit was brought by Ora and Bert Inlow to contest the will, upon the grounds of undue influence and mental unsoundness. A verdict was rendered by the jury setting aside the will, and this proceeding in error is to reverse that finding.

The verdict of the jury is attacked upon three grounds: First, error in the admission of testimony; second, error in the exclusion of testimony; third, that the verdict is against the weight of the evidence.

Taking up the first ground of error, to wit, the admission of testimony, we find from an examination of the record that one Naomi Johns, a witness for the plaintiffs, was asked this question: “I want to ask if, in your opinion, at any time during the time you were present there, Mary M. Inlow was of sound or unsound mind?” In the testimony of Mrs. Sturman, this question was put: “Was Mrs. Inlow at any time while you were there of unsound mind?” Another witness, Mrs. Bailey, was asked this question: “I want to ask if, in your opinion, during the time that you were there, Mrs. Bailey, there were any times that Mrs. Inlow was of unsound mind?”

The record discloses that above three witnesses were servants or employees in Mrs. Inlow’s home for short periods, and that the above naked or bald question was put to them, to which an objection was made and an exception taken. We are of opinion that this question, to wit, “At any time while you were there was Mrs. Inlow of unsound mind?” was improper, and that permitting it to be answered was highly prejudicial to the defendants below.

We believe it to be the law that a layman can give his opinion as to the mental soundness or unsoundness of a testator, but it must be based and founded upon facts, which facts must first be introduced in evidence, and from these facts the opinion stated. This was not done. On the contrary, in the instant case, the opinion was asked, and in one instance only was an attempt made to fortify the opinion by any facts, or acts, or conduct on the part of the testatrix.

We further note, later on in the record, that when practically these same questions were put in proper form by the defense the court refused to allow them to be answered and sustained the objections, as shown by the record in the testimony of Mr. Roley. “From your talk with her and your observation of her, I will ask you to state Mr. Roley, whether in your opinion Mrs. Inlow was of sound mind or unsound mind.” An objection was made and the court below sustained the objection. This, we believe, was error.

From a careful examination of the record before us it is difficult indeed to follow the court’s rulings on matters of testimony, for the reason that the court below seemed to take different views at different times on the admission or exclusion of evidence.

On the second claimed ground of error, the exclusion of testimony, the defense offered the proceedings in the Probate Court, by which the two sons attempted to have the testatrix adjudged an incompetent and a guardian appointed for her. . The court permitted the defense to introduce the application and the notice of hearing, but refused to admit the entry showing the finding of the court. We are of the opinion that this was error, as held by the Supreme Court in Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 161 N. E., 336, wherein the court holds in propositions two and three of the syllabus:

“The mental condition of the testator at the time of making a will determines the testamentary capacity of such testator; and evidence of his mental and physical condition within a reasonable time before and after the making of the will is admissible as throwing light on his mental condition at the time of the execution of the will in question.

“In an action to contest a will upon the ground of the mental incapacity of the testator, an adjudication of the insanity of the testator and the establishment of a guardianship on the ground of insanity is admissible in evidence as bearing upon the testamentary capacity of the testator at the date of the execution of such will.”

It seems reasonable to say that if there was a judicial finding that a person was insane within a reasonable period prior to the execution of the will, and this was admissible as evidence, that the converse would also be admissible. Hayes v. Halle, 23 Ohio App., 522, 155 N. E., 493.

With the contention made on the third claimed ground of error, that the verdict is against the weight of the evidence and should have been for the contestees, considering the state of the record, we can not agree, for the reason that there were two issues in this case, to wit, testamentary capacity and undue influence. The verdict was a general verdict. We can not assume that the verdict was based upon either of the issues to the exclusion of the other. Especially is that true in the absence of special interrogatories. This court has so held in the case of Mossholder v. Head, 37 O. L. R., 372, 13 Ohio Law Abs., 421.

So that, from a careful examination of the whole of the record in this case, we are of the opinion that error intervened in the court below in both the admission of testimony and in the exclusion of testimony, and for that reason this cause is reversed and remanded to the court below for further proceedings according to law.

Judgment reversed cmd cause remanded.

Sherick, P. J., and Montgomery, J., concur.  