
    Minnick et al. v. Cockley, Exr., et al.
    
      Wills — Contest—•Scintilla' of evidence — Charge to jury.
    
    (No. 16810
    Decided June 21, 1921.)
    Error to the Court of Appeals of Richland county.
    
      Messrs. Brucker, Voegele & Henkel, for plaintiffs in error.
    
      Messrs. McBride & Wolfe, for defendants in error.
   The court finds that the petition in the case'alleged that the will of the decedent Jane McLaughlin was not her last will and testament. No other issue was made by the pleadings and the court in obedience to the statute made up the issue between the parties as to the validity of the will. The court finds that there is some evidence offered by the contestants tending to show the incapacity of the testator at the time she made the will, and the trial court charged the jury that there was no evidence in the case to overcome the prima facie case established by the introduction of the will and the order of probate. This court finds on the authority of Clark v. McFarland, 99 Ohio St., 100, that in the giving of /this charge the trial court erred.

It is, therefore, ordered and adjudged that the judgment of the court of appeals be, and the same is hereby, reversed, and coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court'of common pleas be, and the same is hereby, reversed, and this cause remanded to that court for further proceedings according to law.

Judgment reversed and cause remanded.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson and Matthias, JJ., concur.

Jones, J., took no part in the consideration or decision of the case.  