
    No. 347
    ORR v. SMITH
    Ohio Court of Appeals, Wayne County
    No. 751.
    Feb. 23, 1923
    This opinion has not been published except in Abstract.
    EVIDENCE — (1) No prejudicial error to charge on $ undue influence where no proof — (2) Evidence of 1 mental capacity of testator both before and after ( making will — (3) Opinion of non-expert witnesses Í as to mental capacity — (4) Verdict not manifestly ! against weight of evidence.
    Attorneys — Pattérson' and McClara-n, -for Orr; Critchfield & Etling, for-Smith.''
   WASHBURN, J.

Epitomized Opinion

An action was begun in Common Pleas Court to "contest the will of Cyrus Smith. .There was no claim |of any defect in execution of the will, but the claim jwas that the testator did not have mental capacity Ito make a will and that he was unduly influenced. p?he trial resulted in a verdict and judgment setting .¡aside the will. The defendant Orr and others prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1.Although no evidence or proof made of undue influence, it is not prejudicial error for the court to charge on that subject.

). 2. Not only is evidence of the mental 'capacity of ithe testator at the time of making the will admis-Isible, but evidence as to his mental condition for -a treasonable time, both before and after making the (will, is also competent.

3. Testimony of nón-expert witnesses acquainted /with the testator giving opinions as to mental capacity iií connection with the facts upon which their opinions are based is competent, notwithstanding the testimony discloses that they had but little opportunity to observe the testator’s condition.

' 4. While the. record discloses a conflict in' th'e testimony, the court cannot say as á matter of law that the verdict is-manifestly against-the weight of evidence:-  