
    Bolles et al. v. Harris et al.
    In a suit to contest the validity of a nuncupative will, it is competent to-prove that the testamentary words reduced to writing and probated are-not the words spoken by the testator; and it is not error for the court to instruct the jury that if the words reduced to writing and probated are not substantially the same as those spoken, the will is invalid.
    Motion for leave to file a petition in error to reverse the' judgment of the District Court of Sciota county.
    The original action was brought to contest a nuncupative will, admitted to probate as the will of John H. Baird, deceased. The action was appealed to the district court. On the trial in that court evidence was given by the contestors tending to prove, among other things, that the alleged testator did not request the witnesses to said will to witness the same, and that the words actually spoken by the said, testator were not the same as the words written down by the witnesses.
    On the part of the contestees evidence was given tending to prove that the words reduced to writing by the witnesses were the same as those actually spoken by the testator, and that he requested them to witness the same as^ his will.
    
      The testimony beiüg closed, the contestees asked the court to instruct the jury, among other things, as fpllows: That “ parol evidence is not competent to show that the words actually spoken were other or different from those .set forth in the will probated.”
    The court refused to instruct the jury as requested, but did instruct them, on this subject, as follows: “ That, if the evidence showed that the words actually spoken were substantially the same as the words written down by the witnesses, that would be sufficient; but, on the other hand, if the evidence should show that the words written down by .the witnesses as proved and probated, were not substantially the. same as the words- actually spoken, then the will could not stand, and their -verdict should be for the plaintiffs.”
    To the instruction as given, and to the refusal to instruct as asked, the eontestors excepted.
    The trial resulted in a verdict against the validity of the-will.
    The only error relied on is that relating to the charge of the court to the jury.
    
      W. A. Hutchins, for the motion,
    referred the court to the following statutes: 2 S. & C, 1631, sec. 74; lb. 1616, see, .2 ; lb. 1625, secs. 47-51, and for a general summary of the law in regard to nuncupative wills, to 1 Redfield on "Wills, 182-201, and argued that a nuncupative will should stand .on the same footing as written wills, as to the competency of parol evidence to change or modify the words used.
    ' For the rules as to written wills, see 1 Redfield on Wills, chap. 10, paragraphs 1, 5, 7, 8, 9, and 10.
    Nuncupative wills should be favored. 2 Blackstone’s Com. 500. And as to the effect of such wills, see 7, Bacon’s Abdg. Til. Wills, 305; 1 Redfield, 186; 201; Hatcher v. Millard, 2 Cald. 30; Postwood v. Hunter, 6 B. Mon. 538.
    
      ■ O. F. Moore, N. W. Fvans, and William Livingstone, contra.
    ■ This court has said that the contest of a will under our ■statutes is nothing more than a review of its probate. Banning v. Banning, 12 Ohio St. 437; Brown v. Burdick, 25 Ohio St. 266; Mears v. Mears, 15 Ohio St. 91.
    ' The rules claimed by counsel for plaintiff in error would ■deprive legal distributees of valuable rights without giving them a day in court, and open a wide door for fraud.
    On the subject of the admissibility of parol evidence, see Jarman on Wills, 349, 356 ; Small v. Allen, 8 T. B. 147; 1 Redfield on Wills, 498, 499, 510, 511; Turner & Ross, 48; Newberg v. Newberg, 5 Mead, 364; Howland v. Taylor, 53 N. Y. 627, 628 ; McLaughlin v. McDivit, 63 N. Y. 213 ; Rollwagen v. Rollwagen, 63 N. Y. 504.
   White, C. J.

The statute on the subject of nuncupative wills is as follows :

“A verbal will, made in the last sickness, shall be valid in respect to personal estate, if reduced to writing, and subscribed by two competent disinterested witnesses, within ten days after the speaking of the testamentary words; and if it be proved, by said witnesses, that the testator was ■of sound mind and memory, and not under any restraint, and called upon some persons present, at the time the testamentary words were spoken, to hear testimony to said disposition as his will.”

Counsel for the plaintiffs in error contends that the admission of the alleged will to probate, by the probate court, is conclusive evidence that the testamentary words, reduced to writing and recorded, are those of the testator.

As under our system of admitting wills to probate, in the first instance, the court is only authorized to examine the witnesses to the will, and such other witnesses as any person interested in having the same admitted to -probate may desire, the effect of this claim is to preclude persons interested in resisting the probate from giving any evidence to contest the validity of the will, by showing that the tes•tamentary words were never spoken. Hathaway’s Will, 4 Ohio St. 383.

But the claim of the plaintiffs in error is founded on a misapprehension of the nature of the jurisdiction exei’■cised by the court in trying the contest of a will. The jurisdiction exercised in all such cases by the court and jury is virtually that of a court of probate, charged with the ■duty of finally establishing or rejecting the will. The proceeding to admit the will to probate in the first instance, 'is in its nature ex parte; the proceeding by contest is a suit ■inter partes. Mears v. Mears, 15 Ohio St. 96; Converse v. Starr, 23 Ohio St. 498.

Every fact wdiich is required to be proved, in order to admit the will to probate as valid, may, on the contest of the will, be disproved for the purpose of showing it to be invalid.

The statute provides that a verbal will shall be valid in respect to personal estate, under certain prescribed conditions. One of these conditions is that the verbal will shall have been reduced to writing within the time and in the manner prescribed.

Whether this condition, as well as the others required by the statute, had been complied with, were questions of fact to be submitted to the jury, on the evidence. The order of probate was prima facie evidence that the conditions had been complied with; but this prima facie case it was competent for the contestors to rebut and overcome by -other evidence.

The exception to the charge is, therefore, not well taken.

Leave refused.  