
    No. 802
    HUFF et v. ZEIER et
    No. 19822.
    Supreme Court
    On motion to certify;
    Dock. May 18, 1926;
    4 Abs. 322.
    225. CHARGE TO JURY — In an action to set aside a will on the ground that another will subsequently executed which had been lost, revoked the will which was probated, what should be the charge of the court concerning the evidence which will justify the jury in finding that a subsequent will was executed?
    Note — Motion to certify overruled, 4 Abs. 456.
    Attorneys — Saffin, Sandies & Reed, and Oscar W. Newman for Huff; N. J. Weisend and Hogan, Hogan & Hogan for Zeier; all of Columbus.
   Mary J. Huff and George Zeier, Jr., brought this action originally in the Franklin Common Pleas against John H. Zeier, John H. Zeier, Executor, Rev. Bernard J. Hanna and Anna Zeier to set aside a probated will of George Zeier deceased, on the ground that a subsequent will had bean executed, but was lost.

The court charged the jury that a preponderance of evidence would justify a verdict setting aside the will. This judgment was reversed by the Court of Appeals on the .ground that the Cuort should have charged the jury that the evidence of execution and contents of the will must be clear, strong, positive, free from bias and convincing beyond a reasonable doubt

At the second trial the court charged in accordance with the finding of the Court of Appeals but weni further and used the expression “Free from doubt” and thereupon a verdict was returned in favor of the defendants. The Court of Appeals affirmed the Common Pleas.

The plaintiff in error here contends:

1. That the use of the expression “Free from doubt” was prejudicial error because it required the subsequent will to be proved as an absolute certainty.

2. That the fact that the court charged correctly otherwise will not raise a presumption that the jury followed the correct rule to the exclusion of the incorrect will.  