
    No. 503
    SCHNEIDER et al v. BOX et al.
    Ohio Appeals, Sixth District, Lucas County
    No. 1310.
    Decided June 18, 1923
    WILLS — (1) Writer and signer of a will may testify as to its making and the mental capacity of the testator — (2) To invalidate plaintiff’s evidence must preponderate and also overcome presumption of validity arising from the probate of the will.
    Attorneys — Benjamin F. James and Elden Young, for plaintiffs; Fell and Schaal, for defendants.
   CHITTENDEN, J.

Epitomized Opinion

This is an action to contest the validity of a will. The jury returned a verdict sustaining thee validity of the will and judgment was entered thereon. Error was prosecuted in this court on the ground that George Bell, who was not an attorney at law but who wrote the will and signed it as one of the witnesses, was permitted to testify fully as to the conversations had with the deceased with reference to making the will, and to express his opinion as to his mental capacity based upon many years of acquaintance. The plaintiff insisted that Bell, though not an attorney, occupied a relationship of confidence and trust, and the evidence should for that reason be excluded. The Court of Appeals in sustaining the judgment of Judge Ritchie of the Common Pleas Court of Lucas county, held.

1. When a testator procures his attorney as a subscribing witness to his will, b.y that act he expressly consents that the attorney may testify as fully as any other subscribing witness, touching the capacity of the testator or any other fact affecting the validity of the will. Knepper V. Knepper, 103 O. S. 529.

1. When a testator procures his attorney as a

2. It is not prejudicial error for the court to fail to charge that the evidence offered by the plaintiff must not only preponderate over the evidence offered by the defendants to sustain the will, but must also be sufficient to overcome as well the presumption of validity arising by reason of the probate of the will.  