
    No. 519
    STICKLER et v. BEHRINGER, Exr.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2573.
    Decided March 16, 1925
    480. EVIDENCE—In former case showing weakened mentality of testatrix, does not prove mental incapacity in regards to a will, executed nine years prior to the case in question.
    Attorneys—Allen C. Roudebush for Stickler; John C. Healy and R. A. Powell for Behringer; all of Cincinnati.
   HAMILTON, J.

This original action was brought by Martha Stickler to contest the validity of the will of Helena Stickler, deceased. Stickler introduced the same evidence as was introduced in a former case in which the court set aside a deed executed to Lena Behringer, the executrix under the will, because of undue influence prac-tised on Helena Stickler who was mentally weak and subject to undue influence. In the Common Pleas the jury returned a verdict sustaining the will. Error was prosecuted and Martha Stickler claimed the verdict and judgment' was against the weight of the evidence. Behringer contended that a certain exhibit and a deposition offered and admitted in the evidence, was not attached to the bill of exceptions.

Stickler contended that the bill of exceptions was certified by the trial court and the exhibit had been detached for preservation. Leave was asked to attach said exhibit and original deposition. The Court of Appeals held:

1. Leave to attach exhibit to bill of exceptions, will be granted.

2. Verdict necessarily based upon credibility of witnesses being one for the jury.

3. The question of the same evidence introduced in the instant case as was introduced in the undue influence case does not mean that the testatrix was of weakened mentality when the will was executed, which was nine years prior to the execution of the deed.

Judgment affirmed.  