
    No. 10709.
    Hall, Individually and as Exrx., v. Hall.
    Decided April 28, 1908.
    Error to Circuit Court of Haniilton county.
    
      Messrs. Hoffman, Bode & LeBlond and Mr. Frederick S. Spiegel, for plaintiff in error.
    
      Messrs. Bates & Meyer, for defendant in error.
   Judgment reversed.

Ground stated in journal entry.

It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same ■hereby is, reversed for the reason that the charge to the jury is misleading and erroneous in that it no where distinctly states nor sufficiently emphasizes that the order of probate of the will, by the probate. court, raises a presumption that the will so probated is the valid last will and testament of Mercy A. Hall; that the court did not clearly explain to the jury the legal effect of the provision of the statute, “That the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil;” that the jury was not instructed, as it should have been instructed, that before they would be entitled to return a verdict setting aside the will they must be able to find that the evidence adduced by the contestant, Charles F. G. Hall, outweighs both the evidence adduced by the defendant, Anne S. Hall, and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of Mercy A. Hall; that the court erred in instructing the jury that preponderance of the evidence means the greater weight of the testimony; and that the court erred in charging that, “The law also scrutinizes with greater care the acts of the son or daug'hter who is remembered in a will to a larger extent than are others bearing the same kinship, if such son or daughter is in a close relationship of trust or confidence, or upon whom a testatrix would implicitly rely, than it would on others bearing no such relationship.” And this court proceeding to render the judgment which the said circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same hereby is, reversed, and said cause is remanded to the court of common pleas for further proceedings according to law.

■Price, Summers, Spear and Davis, JJ., concur.  