
    STERBA, Plaintiff-Appellant, v. LIENHARD etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21621.
    Decided February 13, 1950.
    Beach & Warner, Cleveland, for plaintiff-appellant.
    Sanborn, Brown & Corlett, Nicola & Marsh, N. A. Ryan, Cleveland, for defendant-appellee.
    (GUERNSEY, PJ, of Third District: HUNSICKER, J, DOYLE, J, of Ninth District sitting by designation in 8th District.)
   OPINION

Per CURIAM:

This appeal on questions of law seeks to set aside a judgment of the Common Pleas Court of Cuyahoga County sustaining the will of one Dolores Lienhard, deceased.

The contestants sought to set the will aside claiming that such will was not properly signed by the testatrix and that such testatrix did not possess testamentary capacity.

This court has carefully examined the testimony adduced at the trial and the charge of the court given to the jury. Such testimony shows that said will was executed by the testatrix in strict conformity with all legal requirements and that she possessed testamentary capacity.

Signature by mark has long been recognized in law as a valid signature, where it is intended by the one so signing that he is to be thereby bound by the instrument so signed.

The facts of this case are not those presented to the Supreme Court of Ohio in West v. Lucas, 106 Oh St 255 for herein the testatrix was conscious, knew the extent of her acts and signed by mark when it became apparent she did not have the strength to sign her name.

The contestant has not overcome the presumption arising from the order of the Probate Court admitting the will to probate and the evidence adduced showing a valid signature and attestation.

The judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order see journal.

GUERNSEY, PJ, HUNSICKER, J, DOYLE, J, cóncur.  