
    VAN DEMARK et v TOMPKINS Exr et
    Ohio Supreme Court
    No. 21542.
    Decided June 12, 1929
   Syllabus by

DAY, J.

DECEDENTS’ ESTATES

(220 Wb) In an action to contest a will, the jury should be instructed that, before it would be justified in setting aside a will, the evidence tending to invalidate the will must outweigh both the evidence tending to sustain the will and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of the testator. Instructions should not limit the determination of such issue to the evidence introduced by either party exclusively, but the issue should be determined by the preponderance of all the evidence adduced in the case, regardless of which party may have called a witness or adduced the evidence. (Hall v Hall, Exr., 78 Ohio St., 415, explained; Kennedy v Walcutt, 118 Ohio St., 442, approved and followed.)

Judgment affirmed.

Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.  