
    Dew et al. v. Reid et al.
    
      Contest of will — Remedy by civil action — Issue prescribed by statute — Competent evidence admissible, though not relating to ground alleged in petition.
    
    1. While the appropriate remedy for the contest of a will is now by civil action, the rules of pleading and procedure under the code, when inconsistent with special statutory provisions relating to such contests, are inapplicable, and the action must be conducted in conformity with such special provisions.
    
      2. The issue to be made up and tried in such actions, having been prescribed by statute, cannot be varied or restricted by averments in the pleadings, but must be the same, whether made up by the pleadings, or by an order on the journal of the court, viz.: “whether the writing produced is the last will or codicil of the testator, or not.”
    S. Upon the trial of that issue, any competent evidence tending- to prove that, for any reason, the instrument in contest is not the valid will of the testator, is admissible, and should receive proper consideration by the jury, although the specific ground of contest to which the evidence relates is not alleged in the petition. 4. It is error to permit counsel, in argument to the jury, to read from a deposition taken in the case, but not put in evidence.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Fairfield county.
    The original action was brought by the plaintiffs in error to contest the validity of the will of Uriah Reid. The petition alleges that: “On the 15th day of May, 1889, Uriah Reid died unmarried and without issue, and the said plaintiffs and the seven first named defendants are his only heirs at law.
    ' “ On the 23d day of May, 1889, a certain paper writing purporting to be the last will of the said Uriah Reid, bearing date of the 6th day of April, 1889, was presented to the probate court of said Fairfield county, and admitted to probate by the probate court of that county, on the 10th day of June, A. D. 1889, and is recorded in vol. XI, page 224, of the Record of Wills, in said court, and letters testamentary thereon were issued by said court to the defendant, Aaron Binckley, as sole executor thereof, who thereupon qualified. By the terms of said paper writing, all of the defendants except James R. Reid and the defendant, Binckley, are named as the several legatees and devisees of said Uriah Reid, and the plaintiff, Walter B. Wilson, is also named in said paper writing as a legatee of said Uriah Reid. Said paper writing is not the last will of said Uriah Reid, hut that said Uriah Reid at the date of said paper writing was not of sound mind and memory, but by reason of extreme age and protracted pain and sickness, was mentally incapacitated from making a will or a proper distribution of his propertjq and was coerced into the signing of said paper by the undue influence of his brother, Joseph H. Reid, and the defendants, Melvina Reid and Thomas Reid, children of the said Joseph Reid, by continuously, for about two years, persuading, harrassing and annoying the said Uriah Reid to make his will in favor of the children of the said Joseph H. Reid, and by other undue influences brought to bear on the said Uriah by the said Joseph H. Reid, Thomas Reid and Melvina Reid, the said Uriah Reed was induced to execute said pretended will.
    “Plaintiffs, therefore, pray that an issue be made up as to whether said paper writing is the last will of the said Uriah Reid, and that the same may be set aside, and for such other relief as is proper. ”
    No answer was filed, but after the service of process, and appearance of the parties, the court made and entered its order, “that a jury be empanelled to try the issues whether the paper writing produced, purporting to be the last will and testament of Uriah Reid, deceased, is or is not the valid last will and testament of the said deceased. ”
    At the trial of the cause, the contestants of the will gave evidence tending to prove, that when it was signed, the testator was of unsound mind, and under undue influence, and that it was not signed and attested as required by the statute; and the record shows that: “Before the close of the testimony in the trial of said action, the court held and adjudged against the objection of the plaintiffs, that under the issue as made up in their action, the distinct question is not for the consideration of the jury, as to the due signing of the said paper writing by the said Uriah Reid, as his last will, because the petition does not allege as a ground of contest, that the paper writing executed was not duly executed, nor as to whether or not the same was duly attested and subscribed in the presence of the said Uriah Reid, by two or more competent witnesses, who saw the said Uriah Reid subscribe, or heard him acknowledge the same to be his last will, for the same reason; but further held and adjudged, that all the evidence touching the execution of the will was admissible, as reflecting upon the grounds of contest alleged in the petition, and the court so charged the jury, to which holding and judgment of the court the plaintiffs then and there duly excepted.”
    It further appears, from the bill of exceptions, that C. E. Linville, one of the subscribing witnesses to the will, was examined on the trial as a witness for the contestants, and that his deposition had been previously taken and filed in the case. His testimony on the trial was more favorable to the contestants than that given in his deposition, but. the deposition was not’ put in evidence to affect his credit, or for any purpose; and yet, as shown by the record, the court, against the contestant’s objection, permitted counsel for the defendants, in the closing argument to the jury, to read an important part of the deposition which was more favorable to the defendants than the testimony of the witness at the trial; the court holding, that it could not prevent the counsel from reading from the deposition, or claiming to the jury that what he read was not different from the testimony given by the witness at the trial.
    The contestants duly excepted to this action of the court. A verdict was returned sustaining fthe will, and judgment entered on the verdict, which judgment was affirmed by the circuit court. To reverse those judgments error is prosecuted here.
    
      Thos. H. Dolson and Chas. A. Beard, for plaintiffs in error.
    
      John S. Brasee and A. I. Vorys, for defendants in error.
   Williams, J.

Prior to the civil code the mode of procedure for contesting the validity of a will was by suit in chancery; and the wills act provided that in such suit an issue should be made up, “whether the writing produced be the last will and testament of the testator, or not, which shall be tried by a jury.” The effect of that statutory provision was declared in Green v. Green, 5 Ohio, 279, where it was held, that “the statute itself having prescribed the issue, it must be followed, and the issue be so made up as to conform to that prescribed by statute.” No answer was necessary, because it could not raise an issue different from that which the statute required to be made up and tried by the jury, nor affect the manner of determining the litigation after bill filed. The act of March 14, 1853, relating to the jurisdiction of the probate court, authorized the validity of wills to be contested by petition filed in the court of common pleas; but that statute, it was heid, in Raudebaugh v. Shelley, 6 Ohio St., 307, did not abrogate, or affect the provision of the wills act prescribing the nature and scope of the issue to be made up and tried in such cases. And in the subsequent case of Brown v. Griffiths, 11 Ohio St., 329, this court held, that a proceeding to contest the validity of a will might be prosecuted “either according to the forms of a suit in chancery, or by petition under the code of civil procedure.” But, in either case, an issue in some form must be made up, “whether the writing produced be the last will of the testator or not. ’ ’ The provision of the statute prescribing the issue in such cases, and requiring that it be made up and tried in conformity with the statute, was declared, in Walker v. Walker, 14 Ohio St., 157, to be imperative in its terms, and deliberately made so, “with a view to prevent a disposition of cases for the contest of wills upon the mere con sent or acquiescence of parties, in any form;” and it was accordingly held to . be error to render judgment upon demurrer to the answer, although the will thereby propounded, which purported to be a joint will, was without any validity, either as a joint or separate will of the parties who executed it. In Runyan v. Price, 15 Ohio St., 1, it is said, that the statute prescribes the mode of contesting a will, as well as the issue to be made up, and e‘ there are no pleadings to which the evidence must be confined, or with the allegations of which it must correspond;” but, “in all eases, the will may be assailed upon any and all grounds that would expose its invalidity.” This rule was followed in Haynes v. Haynes, 33 Ohio St., 598, where, as shown by the statement of the ease, “the issue joined by the pleadings was upon the allegations contesting the will on the ground that the testator was not of sound mind and memory, and that the will was induced by fraud and undue influence, but these were abandoned on the trial except as to the charge of fraud in inducing the testator to sign the paper under a belief that it contained other provisions not expressed in it.” The contestants, on the trial, to prove the want of due execution of the will produced, gave evidence tending to show that it had been materially-altered after it was signed by the testator. The court instructed the jury they had nothing to do with the alteration, and should give it no attention or consideration ; and, for that erroneous instruction the judgment sustaining the will was reversed, the court observing-, that the jury must ascertain whether the writing produced was the valid will of the testator or not, and in ascertaining that, “they were called on to determine, not only the capacity of the testator to make a will, and its due execution, but also, the equally important fact of identifying the paper and its provisions as such will.”

In the codification of the statutes which has been made since the cases we have referred to were decided, it is provided in the chapter relating to the contest of wills, that any person interested in a will or codicil admitted to probate, “may contest the validity thereof in a civil action in the court of common pleas of the county in which such probate- was had. ’ ’ Section 5858, Revised Statutes. And section 5861, contains the provision that, “an issue shall be made up, either in the pleadings or by an order on the journal, whether the writing produced is the last will or codicil of the testator, or not, which shall be tried by a jury.” These statutory provisions were in force when the action below was brought; and it will be observed that the issue which section 5861 requires to be made up and tried, is identical with that prescribed by former statutes, and defined by precisely the same language, which, therefore, must receive the same construction, and be given the same operation and effect, as had been accorded to it by previous adjudications. And though actions of this nature are now dominated civil actions, yet, in so far as they are governed by special statutory regulations inconsistent with the rules of pleading and procedure under the code, the latter are inapplicable; so that, the issue which shall be made up and tried in such eases, having been specifically prescribed by statute, cannot be varied or restricted by averments in the pleadings whether controverted or not. And while that issue may be made up either by the pleadings, or by an order entered on the journal of the court, it must, whichever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will, of the alleged testator; and, as the proof may be commensurate with the issue, any competent evidence tending to prove that, for any reason, it is not his valid will, is admissible, and should receive proper consideration by the jury. Besides, it is well settled, that while a proceeding for the contest of a will is conducted by original action, the court exercises the probate jurisdiction of finally establishing or rejecting the will, and the proceeding is in the nature of an appeal from the order of the próbate. Mears v. Mears, 15 Ohio St., 90; Converse v. Starr, 23 Ohio St., 498; Haynes v. Haynes, supra. The scope of the inquiry on the contest may therefore be as comprehensive as that for the admission of the will to record, and upon the latter inquiry, before admitting the will to probate, it must be made to appear that it “was duly attested and executed, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint.” Revised Statutes, section 5929.

We therefore think, in any proper view of this case, the trial court erred in excluding from the consideration of the jury, the evidence given by the contestants to prove the want of due execution of the will in contest. It hardly need be said that this conclusion is in no way in conflict with Wagner v. Ziegler, 44 Ohio St., 59, cited by counsel for the defendants.

The trial court also erred in permitting the defendant’s counsel, while making his argument to the jury, to read from a deposition which had been taken in the case but not put in evidence. We do not deem it necessary or important to enter upon any discussion of this error. The court seems to have misapprehended its power, as well as its duty.

For both of the errors mentioned, the judgment of the circuit court and that of the court of common pleas are reversed, and the cause will be remanded for a new trial.

Judgment accordingly.  