
    No. 426
    ZEIER et v. HUFF et
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1278.
    Decided March 5, 1925.
    1271. WILLS—1. Probated will held not revoked by evidence that later lost will was executed.
    2. Evidence of value of estate devised held not competent in issue to establish lost wilL
    3. Clear and convincing evidence required to establish lost will.
    1195. TRIALS—Arrest of case from jury erroneous when evidence sufficient to warrant submission and no motion made to effect such result.
    Attorneys—N. J. Weisend' and Timothy S. Hogan for Zeier, Saffin, Sandies and R. J. Bartlett, for Huff; all of Columbus.
   BY THE COURT.

After the death of George Zeier, a will executed by him Jan. 29, 1913 and duly attested, was probated. This will was contested in the Franklin Common Pleas by Mary Huff, her main contention being that there was executed by her father George Zeier, before his death and subsequent to the will probated, another will, his last will, in which she was named as beneficiary. It was brought out that after the testator’s death there was no other will than the one probated found among his papers. One, Reitebach testified that he drew up the so-called last will, and was one of the witnesses thereto, and was also a -witness to the will probated. He claimed that there was a provision in the last will for a daughter Mary.

The trial court held that a mere prepen-derenee of the evidence was necessary to establish the claim of the contestant, Mary Huff, (following Collins v. Collins 110 OS 137) and therefore she was entitled to recover; and judgment was directed in her favor. Error was prosecuted and John Zeier the plaintiff herein claims the lower court erred in admitting evidence as to the value of the estate of the testator, and also erred in directing a verdict. The court of appeals held:

1. Evidence of the value of the estate of testator is usually admitted in case of undue influence and where testamentary capacity is involved. In this case where the only question is the existence or-non-existence of a so-called last will this evidence is incompetent.

2. There was sufficient evidence to warrant the case to go to a jury especially so when no motion was made at the close of all the evidence to arrest the case from the jury.

3. The general charge in respect to the preponderence of the evidence being sufficient to prove the so-called last will was erroneous and the court should have followed the principles laid down in Cole v. McClure 88 OS 1, wherein clear and convincing evidence was held necessary.  