
    Wagner v. Ziegler.
    
      jSill of Exceptions — Signed by but one of three judges— When court may dived verdict in contest of will.
    
    1. A paper purporting to be a bill of exceptions, signed by one judge - only of the three judges holding the district court, will not be.considered as part of the record, although the journal entry iu t,he case recites that a bill of exceptions is presented, which, being found by the court to be true, is allowed, signed, sealed, and made part of the record) and no other paper purporting to be a bill of exceptions appears in the files in the case. Shillito v. Thacker, 43 Ohio St. 63, approved and followed.
    
      2. In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the 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 the plaintiffs' testimony, to direct the jury to find a verdict sustaining the will.
    Erp„or to the District Court of Auglaize county.
    The action below was to contest the will of Frederick "W. Ziegler, and was commenced by the filing by the plaintiffs in error of a petition, as follows:
    “ Sophia Wagner and William Ziegler, plaintiffs, against Charlotte Ziegler, Margareta Ziegler, Rieka Ziegler, Mary Ziegler, Freddie Ziegler, Louisa Vossler, Mollie Ziegler, Emma Ziegler, William Steinkamp, Christian Steinkamp, Sr.,Dr. Christian Steinkamp, Jr.,William Cordis (orKores), Louis Cordis (or Kores), and Edward Purpus, executor of F.W. Ziegler, deceased, defendants. State of Ohio, Auglaize county, ss. Court of common pleas. Civil action. Petition. Said Sophia Wagner, one of said plaintiffs, says that she is a married woman, wife of Peter Wagner, and that this action concerns her separate estate.
    “Said plaintiffs, Sophia Wagner and William Ziegler, respectfully represent that on or about the 13th day of April, 1880, one Fred. W. Ziegler, then a resident of New Bremen, in said county of Auglaize, died testate, leaving a last will and testament of that date, which will was, on the 19th day of May, 1880, duly probated in the probate court of Auglaize county, Ohio; a copy of said will, etc., is hereto attached, marked “A,” and made a part hereof.
    “Said F. W. Ziegler died, leaving the following’ named persons, his widow and heirs at law, to wit: Charlotte Ziegler, widow, residing at New Bremen, Auglaize county, Ohio. Heirs at law, said plaintiffs and Margaret Ziegler, widow, and Rieka Ziegler, Mary Ziegler and Freddie Ziegler, heirs of Henry Ziegler, deceased, residing in the state of Alabama; Louisa Vossler, wife of Michael Vossler, residing in Auglaize county, Ohio, and Mollie Ziegler and Emma Ziegler, of the same place. The following named persons are the legatees of said will, to wit: Wilhelmina Steinkamp, Christian Steinkamp, Sr., Christian Steinkamp, Jr., William Cordis (or Kores), and Louis Cordis (or Kores), all residing in Hamilton county, Ohio. Said Edward Purpus, of Auglaize county, Ohio, is the duly qualified and acting executor of said deceased Fred. ~W. Ziegler. Said F. W. Ziegler died seized in fee of considerable real estate and the owner of some personal estate, all of which is described in said pretended will. Said plaintiffs further represent that said will so probated as aforesaid is not the last will and testament of said deceased, because at the time of execution thereof said F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will. Said plaintiffs further say that said executor, notwithstanding the facts aforesaid, is threatening to settle and distribute the estate of said deceased in accordance with the terms of said will so as aforesaid probated. Said plaintiffs therefore' pray that said pretended will and the probate thereof may be set aside and held for naught, and that until the final hearing hereof said executor may be restrained from proceeding under said will, and for all proper relief.”
    The will referred to in the petition is as follows:
    “The last will and testament of Frederick W. Ziegler, of New Bremen, Auglaize county, Ohio. In the name of the benevolent Father of all: I, the said Frederick "W. Ziegler, being of sound and disposing mind and memory, considering the uncertainty of continuance in life, and desiring to make such disposition of my worldly estate as I deem best, do .make, publish and declare this to be my last will and testament, hereby revoking and annulling any and all former will or wills, whatsoever, by me made. First. I desire all my just debts and funeral expenses to bo paid as soon as possible after my decease. Second. I give and bequeath to my daughter Louisa, married to M. Yossler, my two lots lying in Yogalsangstown and owned at present by me, to be hers forever. Third. I desire that my sister, Wilhelmina Steinkamp, shall have my house and lot in Piqua, to be hers forever. Fourth. I give and bequeath to Christ. Steinkamp the sum of two hundred dollars. Fifth. I give and bequeath to William Kores the sum of two hundred dollars. Sixth. I give and bequeath to Louis Kores the sum of two hundred dollars. I nominate and appoint Edward Purpus to be the executor of this will. In witness whereof, I have hereunto set my hand and seal, this 13th day of April, in the, year eighteen hundred and eighty. F. W. Ziegler., [seal.]”
    Issue was joined by the filing by some of the defendants of an answer containing the following averments:
    “ Defendants admit each and every allegation set forth in plaintiffs’ petition, except the allegation ‘that said will, as probated, is not the last will and testament of said decedent, because at the time of the execution thereof said E. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will,’ which allegation the said defendants deny. The above-named defendants, further answering said petition, aver that said will, as probated, is the last will and testament of the said E. W. Ziegler, and that said E. W. Ziegler, at the time of the execution thereof, was of sound mind and disposing memory, and had sufficient mental capacity to make and execute a will.”
    A trial was had in the court of common pleas, which resulted in a verdict for the plaintiffs. From the judgment thereon rendered some of the defendants appealed to the district court, and filed in that court an appeal bond, the condition of which is as follows :
    “The condition of the above obligation is such, that whereas, Wilhelmina Steinkamp, O. Steinkamp, Jr., C. E. Steinkamp, and William Cordes, have taken an appeal from a certain judgment setting aside a will of E. W. Ziegler, rendered against them in favor of the said Sophia •'Wagner and William Ziegler in the court of common pleas within and for the county of Auglaize, in the State of Ohio, at the February term, a. d; 1882, thereof, for setting aside the will of Frederick W. Ziegler, deceased, to the district court within and for said county of Auglaize. Now, if the said Wilhelmina Steinkamp, C. Steinkamp, Jr., C. E. Steinkamp, and William Cordes shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required .of, or awarded against, said O. Steinkamp, Jr., C. E. Steinkamp, and William Cordes, by said district court, then this obligation shall be void, otherwise in full force in law.”
    A motion was filed in the district court by the plaintiffs, to dismiss the appeal for the reason that the bond is insufficient and invalid in law, and insufficient in form and amount. This motion was heard upon evidence and overruled, to which plaintiff's excepted. Atrial to a jury followed. At the conclusion of the plaintiff’s evidence, and after argument, the court, finding there was no evidence proving or fairly tending to prove the issues on part of the plaintiffs showing incapacity of the deceased to make a will, directed the jury to find a verdict sustaining the will. Thereupon the jury returned a verdict accordingly. Motion for new trial being overruled, judgment of affirmance was entered, and costs adjudged against plaintiffs, to all which they excepted. Afterwards an entry was made on the journal to the effect that the plaintiffs present to the court their certain bill of exceptions herein, which, being found by the court to be true, is allowed, signed, sealed, and, on motion, is made part of the record of this case. The paper, called in the printed record “bill of exceptions,” purports to contain the testimony given upon the hearing of the motion to dismiss appeal and that given at the trial. It is signed and sealed by the judge who presided at the trial, but not by either of his associates.
    
      Von Seggern, Phares § Dewald, for plaintiffs in error.
    1. The statute governing the contest of wills is imperative that the trial must be by jury. This means that the question whether or not the paper writing presented is the last will must be determined, not by the court, but by the jury, and this whether any evidence is introduced or not. It is a question of fact which the court has no authority to determine under any circumstances.
    The court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. The court will never presume to decide upon its sufficiency, however slight it may be. This is for the jury. Walker v. Walker, 14 Ohio St. 157, 176; Cooch v. Cooch, 18 Ohio, 150; Holt v. Lamb, 17 Ohio St. 375; Revised Statutes, § 5861.
    There were sufficient facts admitted by the pleadings, tending to prove the issue, to require the case to be submitted to the jury.
    
      2. The entry made by the court with respect to the bill of exceptions, was equivalent to a signing by the judges.
    8. The cause was brought into the district court by an insufficient appeal bond. O. F. Steinkamp, one of the'parties named in the bond as appellant, was not a party to the suit. No judgment was ever rendered against him in the case, and not being a party, judgment could not have been rendered against him in the appellate court. This being so, there could be no breach of the bond. The bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond; and if the words will not make them liable, nothing can. There can be no construction, no equity against sureties. If the bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail. Myres v. Parker, 6 Ohio St. 501; McGovney v. State, 20 Ohio, 93.
    The bond might have been amended, but that not having been done, the appeal should have been dismissed. Revised Statutes, § 5233.
    
      T. IF Brolherton (with whom was B. L. W'alters), for defendants in error.
    The bill of exceptions was signed by but one of the three judges composing the court. It is provided by the Revised Statutes, § 5302: “If the exception be true . . . a majority of the judges composing the court must allow and sign it before the case proceeds.”. Hence there is no bill of exceptions, notwithstanding the journal entry. The pretended bill itself contradicts the record, and can not be considered by the court.
    As the testimony on the part of the contestants of the will is not before the court, the plaintiffs in error can rely only on the declaration of the journal entry that the court “ finding there was no evidence proving, or fairly tending to prove the issues on. part of said plaintiffs,” directed the jury to find a verdict sustaining the will.
    The reasoning of the opinions in Walker v. Walker, 14 Ohio St. 157, and Holt v. Lamb, 17 Ohio St. 375, cited by counsel for plaintiffs in error, is to the effect that the proponents of the will have the right to have a jury pass upon the validity of the will under proper instructions by the court. The contestants, not the proponents, are complaining of the directions or instructions of the court.
    When there is no evidence proving, or fairly tending to prove the issue, upon the plaintiff to establish, he having the onus probandi, in all civil cases triable to a jury, the court may, and it is its duty, on motion of defendant — the motion being in the nature of a demurrer to the evidence —to direct the verdict of the jury. Stockstill v. D. & M. R. Co., 24 Ohio St. 83; Dick v. Railroad Co., 38 Ohio St. 389; Wells L. & F., §§ 329, 527, 532; Rich v. Rich, 16 Wend. 663; Pleasants v. Fant, 22 Wall. 116.
   Spear, J.

We give attention to the questions argued by counsel so far as they are presented by the record: 1. Did the district court err in overruling the motion of the plaintiffs to dismiss the appeal? 2. Did that court err in finding that there was no evidence proving, or fairly tending to prove the issues on part of plaintiffs showing incapacity of the deceased to make a will, and in directing the jury to find a verdict sustaining the will?

As to the first: The reason urged in argument why the motion should have been sustained, is that C. F. Steinkamp, one of the parties named in the bond as appellant, was not a party to the suit. Is this shown? One of the defendants of record is Christian Steinkamp, Sr. The motion was heard upon evidence. That evidence is not before us. Notwithstanding the journal entry given in the statement of the case, the evidence contained in the paper purporting to bo a bill of exceptions, can not be examined by this court, the paper having been signed and sealed by one only of the three judges who held the district court. Shillilo v. Thacker, 43 Ohio St. 63. All presumptions are in favor of the judgment. For aught that appears, it may have been shown that the party named as C. F. Steinkamp in the bond was the identical party defendant named as Christian Steinkamp, Sr , in the petition. The middle initial is not infrequently dropped in the naming of parties, and it is not unreasonable to treat the affix of “Sr.” as a superfluity. The record discloses no error in overruling the motion to dismiss the appeal.

In support of the charge of error upon the second ground, it is insisted that there were sufficient facts admitted by the pleadings, taken in connection with the will, tending to prove the issue to require the case to be submitted to the jury. Many of the assumptions and statements of the brief are founded upon facts assumed to exist because of testimony set out in the alleged bill of exceptions. Having already found that we have no bill of exceptions in the record, it would be a needless use of space to consider them. As to the allegations of the petition taken with the will, the court below was of opinion that they furnished no evidence tending to show incapacity on part of the deceased. We do not deem it necessary to take time with this point more than to say that we agree with the district court in that view. And having found, on conclusion of plaintiffs’ testimony, that there still was no evidence tending to prove incapacity on part of the deceased to make a will at the time the will was made, what was the duty of the court?

It is urged that, in passing upon the sufficiency of the evidence and directing the jury to bring in a verdict sustaining the will, the court exceeded its power, and the plaintiffs were thereby deprived of their statutory right to a trial by jury. 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 eases, under like circumstances, would be given. The statute, in regard to the contest of wills in force at the time of the trial below, Revised Statutes, sec. 5861, and following, provides that an issue shall be made up, whether the writing produced is. the last will of the testator or not, which shall be tried by a jury; and, unless a new trial be granted, or the cause appealed, the verdict shall be conclusive, and the court shall enter judgment thereon; that, on the trial, the order of probate shall be prima fade evidence of the due attestation, execution, and validity of the will ; that the party sustaining the will, shall be entitled to open and close the evidence and argument — he shall offer the will and probate, and rest. The opposite party shall then offer his evidence. The party sustaining the will shall then offer his other evidence; and rebutting evidence shall be offered as in other cases. An appeal maybe had to the district court; and that court shall direct the issue tried in the court below to be re-tried in that court in the same manner.

The court may not dispose of the case by a decree, nor by a judgment rendered for mere insufficiency of pleading. There must be a jury trial, if the case proceeds at all. But is the jury trial necessarily other than the common law trial by jury ? We look in vain, in the brief tendered, for any satisfactory reason why it should be. The statement is, that the court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. But why? In other jury trials, the court judges not only of the competency of testimony offered, but, when it is all in, whether any evidence has been given tending to sustain, the claim of the party, upon whom the burden is. Iu contests of wills, manifestly, the burden is on the plaintiffs. By the introduction of the will, and order of probate, a prima facie case has been made against them. Suppose they offer no testimony at all, wouhTnot the plain duty of the court be to so say to the jury ? And, if so, why not take the next step, .and say that, under such circumstances, it would be their duty to find in favor of the will? And upon what principle is it that testimony, which does not tend to support the issue at all, is of more force in law than no testimony ?

The language of the opinion in Walker v. Walker, 14 Ohio St. 157, is cited. Speaking of trial by jury, Brinkerhoff, J., on page 176, says that “ this provision of the statute is imperative in its terms, and we have reason to believe that it was deliberately enacted with a view to prevent a disposition of cases for the contest of wills upon the mere consent or acquiescence of parties in any form.” This language, and the statute as well, may properly be read in the light of our knowledge of the mischief sought to be remedied, which was, speaking from tradition and history, a tendency to procure the setting aside of wills by consent decrees in chancery. The first statute upon the subject provided that, when the widow or person of kin appeared to contest the will, the court should take cognizance thereof and grant proceedings thereon accoi'ding to law. This furnished an easy mode of disregarding the expressed wish and purpose of the dead testator, and necessitated a change incorporating, as a requirement, trial by jury, as in the present statute. This statute, taken as a whole, negatives any idea that the legislature intended to encourage the setting aside of wills; quite a contrary purpose is manifest. No argument can be needed to sustain this view; a bare reading of the statute abundantly supports it. And we venture the statement that the predominating idea is, that wills, which have been duly admitted to probate and record in the probate court, shall not be set aside by mere consent of parties. The affirmance of the will but leaves the parties where they were before suit commenced. The judgment of the probate court is binding until a verdict sets its order aside. -

But the controlling'feature of the case cited, as applied to the case under consideration, is found in the third paragraph of the syllabus, which is: “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.” We emphasize: “ Under proper instructions by the court.” “Proper instructions” are such as the law of the case, and the testimony before the jury, make pertinent. It is difficult to see how this case of Walker v. Walker gives any color to the idea, that the statute is intended to dethrone the court and make the jury supreme. The statute provides the order in which the testimony shall be introduced, gives legal effect to the will and order of probate, and requires the case to be submitted to the jury. In other respects the ferial is to be conducted as other jury trials are conducted ; and it is the duty of the court in that case, as in other cases; to give proper instructions to thejury. And it may well be treated, not as having effect to enlarge the rights of the parties during trial, but as furnishing a rule of procedure only.

There are other assignments of error, but they are disposed of by the disposition of those herein considered. We find no error in the record.

Judgment affirmed.  