
    EXECUTORS AND ADMINISTRATORS — WILLS.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Marvin, Winch and Henry, JJ.
    Edward N. Fell, Admr. v. Amyrilla Carter, Admrx.
    Bequest Incompetent Evidence of Payment in Action for Services Rendered Decedent.
    In an action to recover for personal services rendered a deceased person, it is not competent to introduce the decedent’s will, in which she makes a bequest to the plaintiff, as evidence tending to show that the bequest was in payment for the services, '.unless the will so states.
    [Syllabus by the court.]
   WINCH, J.

This was an action to recover for personal services rendered by defendant in error’s intestate, Thomas Sheets, to plaintiff in error’s decedent, Sarah A. Spafforc],

Without objection the defendant below was permitted to introduce the fourth section of the will of Mrs. Spafford which provides:

“To my brother Thomas Sheets, I give, devise and bequeath the sum of four hundred dollars, but should he die before myself, this bequest will be null and void.”

In his charge the trial judge directed the jury to consider whether this bequest in the will was intended to be and was in satisfaction of her brother’s claim. Afterwards realizing that in this respect he had erred in his charge to the jury, the judge recalled the jury and gave the following additional charge: .

“Gentlemen, I submitted an issue in the charge, which upon reflection I am satisfied was erroneous on my part. That was with reference to the use that might be made of the proof as to the bequest in the will of four hundred dollars by Mrs. Spafford to her brother. This money has never been received by him, and it can not bind his rights in any respect nor those of his administrator. It, therefore, can not be considered in the nature of a defense by way of any satisfaction for any claim which the plaintiff may have in the case. You may, however, consider that act of hers in making such bequest in the will, and give it whatever weight it is entitled to as bearing upon what the true understanding and agreement was between the parties as to any promise to pay for the services rendered by the plaintiff. If it has any bearing or sheds any light on that question, consider it for that purpose. It can not be considered as a defense in the nature of any satisfaction for any obligation sued on. I, therefore, make this correction that there may be no error in the instructions given in the charge. ’ ’

This additional charge is not in accord with the proposition laid down in the case of McNeil v. Pierce, 73 Ohio St. 7 [75 N. E. Rep. 938; 1 L. R. A. (N. S.) 1117; 112 Am. St. Rep. 695], but its general tenor was favorable to the defendant below and can not be complained of by him. However, his counsel now says that the statement therein contained that “this money has never been received by him,” was not based upon any evidence in the case, and was therefore unwarranted and was misleading. For this reason he says that the judgment should be reversed.

This language was doubtless suggested by the language used' by Judge Wright in ruling upon a similar proposition in the case of Willis v. Dun, Wright 133, but ivhether a good or bad reason was given for excluding the will in that case, or limiting its competency in this case, is immaterial. The will should not have been submitted to the jury at all, or for any purpose. There was no error prejudicial to plaintiff in error in this -additional charge. Neither was there error in permitting the deposition of a son of Thomas Sheets to be used. He was not disqualified from testifying by any statute we know of.

Judgment affirmed.

Marvin and Henry, JJ., concur.  