
    Clark et al. v. McFarland et al.
    
      Will contest — Scintilla rule applies, when — Motion to direct verdict.
    
    1. In proceedings in, contest of a last will and testament, a motion to direct a verdict in behalf of the proponents of the will, at the close of the evidence of the contestants, must he overruled by the court, if some evidence has been offered in support of the issues involved.
    2. The scintilla rule of evidence is to he applied in such proceedings, as in the ordinary jury trial of a civil action.
    (No. 15942
    Decided December 17, 1918.)
    Certified by the Court of Appeals of Union county.
    The facts are stated in the opinion.
    
      Messrs. Brucker & Henkel and Messrs. Robinson & Hoopes, for plaintiffs in error.
    
      Mr. Charles H. Adkins and Messrs. Cameron & Cameron, for defendants in error.
   Nichols, C. J.

Jurisdiction of the case at bails conferred on this court by certification thereof by the court of. appeals of Union county, as being-one in which the judgment is in conflict with the judgment pronounced by the court of appeals of Hamilton county in two cases.

The first of these cases is that of Gomien, Exrx., et al. v. Weidemer et al., 27 O. C. A., 177, and the second is Kammann et al. v. Kammann et al., 6 Ohio App., 455.

The question is: Has the trial court, in an action to contest a will, authority to direct a verdict of the jury sustaining the will on the ground that the evidence adduced by the contestants is insufficient to rebut the presumption of validity arising from proceedings in probate ? Or, stated otherwise, Does the scintilla rule of evidence obtain in proceedings to contest a will, as in civil actions generally ?

It is to be observed that while an action to contest a will is often spoken of as a special statutory proceeding, it is after all a civil action, expressly made so by Section 12079, General Code.

By the terms of Section 12082, a trial procedure for such action is provided, differing essentially from the ordinary. “An issue must be made up,” it is said, “either by pleadings or an order on the journal, whether or not the writing produced is the last will or codicil of the testator, which shall be tried by a jury.”

No judgment in such case can be entered either by default or consent of parties. The instrument can neither be sustained nor destroyed except through the verdict of the jury.

In the ordinary civil action parties may submit their contention, by consent, to the judge of the court, a jury being waived.

A jury cannot be waived in an action to contest a will.

It is to be presumed that the general assembly, in thus prescribing this different method for’ the trial of such actions, was moved by considerations of moment; and if the trial judge by directing a verdict in such a case can indirectly thwart the statute, some very conclusive reasons should be advanced in support of such procedure.

The reason assigned by the contestees in the case under consideration, justifying the directed verdict, is that in the trial not only had the contestants failed to show by the greater weight of the evidence that the testator was incompetent to make a will, but that the evidence adduced was not sufficient to overcome the prima facie case made by the order of probate.

The claim is made that under such state of facts the trial judge is not .bound to scan the record to discover if a scintilla of evidence was offered, but may in effect weigh the evidence, and by such process, if he find the presumption of validity still prevailing, may direct a verdict accordingly.

It is conceded in the case at bar that some evidence was offered by the contestants in support of the issue tendered in their petition. It consisted, in part, of the testimony of two physicians, testifying as experts, who, in answer to certain hypothetical questions, stated that the testator, at the time of the execution of the will, was not of sound mind..

Other witnesses were called by the contestants, and testimony was offered to the effect that the testator was quite feeble in body, advanced in years (about 83 years), suffering great bodily pain, collapsed almost immediately after signing the document, and died within five days of its execution, that opiates were administered to relieve pain, that the will was somewhat — indeed, quite — complicated. And it is further claimed that the will itself, being unfair to a portion of the next of kin, was some evidence of incompetency.

There are two Ohio cases on this subject that may be briefly reviewed with profit, Walker et al. v. Walker et al., 14 Ohio St., 157, and Wagner v. Zeigler, 44 Ohio St., 59.

In the first of these cases, the court holds, in the third proposition of the syllabus, that “In a proceeding under the statute to contest the validity of a will, it is error to render final judgment on demurrer to an answer. An issue must be made up, and tried by a jury, under proper instructions by the court.”

The court had held, in the first proposition of the syllabus, that the will in question was absolutely void in law and that the court of probate was without power or jurisdiction to admit it to probate.

This conclusion was reached after consideration of the facts set forth in the petition and answer, none of which were in dispute. Such was the binding force and effect of the statute of procedure established to govern the contest of wills, as it then appeared to the court, that the court was imperatively driven to the necessity of reversing and remanding the cause to the court of common pleas, with directions to submit the same to the jury under proper instructions.

It may be fairly said that this case would establish the doctrine that a will cannot be set aside through contest proceedings except and only by the verdict of a jury. Indeed, the principle of the case would seem to be that even if no evidence were offered by contestants after the proceedings in probate had been put in proof, still the trial judge could not direct a verdict, but must submit it under proper instructions.

In the second of these cases, the court established a more liberal doctrine, holding in the second proposition of the syllabus that “In the trial of a contest of a will, where the testimony introduced does not tend to prove the issue on the part of plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of plaintiff’s testimony, to direct the jury to find a verdict sustaining the will."

This proposition, we think, is nothing more nor less than a restatement of the scintilla rule of evidence, in its application to the trial of an action to contest the validity of a will.

Judge Spear, in his opinion in this case, at page 67, says: “In other words the claim is, that whatever the state of the proof: — however completely the plaintiff fails to make the slightest prima facie case — yet the court must, perforce, send the .case to the jury, omitting the usual and ordinary instructions which, in other cases, under like circumstances, would be given.”

The position of counsel, as thus stated by Judge Spear, was much more extreme than that taken by Judge Brinkerhoff in the case of Walker v. Walker, supra, for the opinion of this learned judge was that whatever the state of the proof might be, and even if the contestant utterly failed to make the slightest prima facie case, the case must be submitted to a .jury; yet that it was the duty of the trial judge to accompany the submission with proper instructions as to the law of the case.

It is quite true that this court did not, in Wagner v. Zeigler, supra, adhere in all its strictness to the rule laid down by Judge Brinkerhoff.

What the court did in Wagner v. Zeigler was to hold that the trial judge might do in a will-contest case precisely what he could in the ordinary civil action.

It is perfectly clear that it was not intended by the court to hold that the prima facie validity which attaches to a will by reason of the proceedings in probate should have the effect of removing the will case from the class subject to the scintilla rule.

We thus find three possible rules of procedure:

1. The strict construction of the statute adopted by the court in Walker v. Walker, which denies authority to the trial judge to direct a verdict, no matter what may be the state of the proof.

2. The more liberal rule established in Wagner v. Zeigler, applying to will cases the scintilla rule of evidence.

3. The ultra liberal rule established in Gomien, Exrx., v. Weidemer et al. and Kammann v. Kammann, and by the common pleas court in the case under consideration.

We have determined to follow the second of these rules of procedure, and since it appears that some evidence, although slight, was offered by contestants, tending to prove the material facts necessary to be proven in such class of cases, the cause should for that reason have been submitted to the jury.

We are of opinion that the court of appeals of Union county was correct in holding that the trial court erred in thus directing a verdict.

We hold that the doctrine of the scintilla rule is just as much to be applied to actions in contest of will as to any other civil action.

We hold that, giving full effect to the prima facie case made in behalf of the will by the order of probate, still, if a scintilla of evidence be offered by the contestants, tending to oppose this prima facie case, and tending to prove the mental incapacity of the testator, the jury must, under proper instruction, determine by its verdict the issues thus made.

The judgment of the court of appeals is affirmed and the cause is remanded to the court of common pleas of Union county to proceed in accordance therewith.

Judgment affirmed, and cause remanded.

Wanamaker, Newman, Matthias and Johnson, JJ., concur.

Jones, J.,

dissenting. In certifying this case it is very apparent that the court of appeals, as has this court, applied the scintilla rule that obtains in ordinary civil actions to a proceeding to contest a will under the statute. Exercising its constitutional authority, this case was certified here by the court of appeals of Union county because it was “in conflict with the decisions of other courts of appeals of the state of Ohio.” Among such conflicting decisions is the case of Gomien, Exrx., et al. v. Weidemer et al., decided by the court of appeals of the fourth appellate district, sitting in Hamilton county, and reported in 27 O. C. A., 177; also the case of Kammann et al. v. Kammann et al., decided by the court of appeals of the first appellate district and reported in 6 Ohio App., 455. It is now decided, by affirmance of the present case, that in a proceeding to contest a will under our statutes, if the plaintiff at the close of his case has offered a scintilla of evidence, the same rule utilized in other civil actions applies, and the issue must be submitted to the jury. I cannot concur in this view.

Section 12083, General Code, provides: “On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil.”

This legislative rule of evidence was manifestly adopted for the purpose of requiring substantial proof to overthrow the purpose of the testator and set aside the judgment of a court of competent jurisdiction which had found in favor of the attestation, execution and validity of a will. Scintilla evidence is of lesser degree than prima facie evidence. The former is merely a “tendency to prove.” The latter is actual proof. If the scintilla offered by the plaintiff in the trial of his case is overwhelmed by the balance of his own evidence, it is apparent not only that the scintilla has been demolished but that the prima facie effect of the order of probate has been left intact.

The legal principle has been announced by this court, in a proceeding to contest a will, that when the contestant has rested his case the evidence adduced by him must outweigh both the evidence adduced adverse to him and the presumption of validity arising from the order of the probate court admitting the will to probate. Hall, etc., v. Hall, 78 Ohio St., 415.

The majority opinion holds that when the plaintiffs rested they had offered a scintilla of evidence in support of the issue, and that it was for the jury to determine its weight. With the concession that but a mere scintilla was offered, it became the duty of the court, as a matter of law, to decide that, under the statute named, a scintilla did not counterbalance the prima facie case made by the order of probate. It therefore became the legal duty of the court in that situation to direct a verdict for the defendants.

The question here presented involves the legal question and.not the weight of the evidence, for we are now assuming that plaintiffs have a scintilla only. Should the trial court determine that the scintilla was sufficient to overcome a prima facie case, the court would commit, a legal error. The principle is analogous to that applied in attempts to cancel or reform written instruments, which may be done only by clear and convincing proof. Surely a will executed by a testator, with the added force of an order of probate, under the section quoted, is subject to no less evidential protection than is an ordinary written instrument. Should it, therefore, appear that the trial court in a will-contest case submitted to the jury an issue “upon the supposition that it regarded the law as requiring nothing more” than a scintilla to warrant a finding to set aside the will, a reviewing court, on error, may reverse the judgment based on such finding. (Potter v. Potter, Exrx., 27 Ohio St., 84, and Ford v. Osborne, 45 Ohio St., 1.) These cases are authority for the legal principle that, though this court will not undertake to weigh the evidence, it will examine the record to determine, first, whether there is any evidence tending to support the issue, and, second, whether the rule of proof has been properly applied. “Where the affirmative of the issue in a civil action requires clear and convincing proof to sustain it, and it is claimed that the rule has been disregarded, this court may, where it is all set forth in the bill of exceptions, review the evidence for the purpose of determining if the rule has been disregarded.” Syllabus Ford v. Osborne, supra.  