
    Steinle v. Kester et al.
    
      (Decided December 22, 1932.)
    
      Messrs. Billingsley é Manix, for plaintiff in error.
    
      Mr. Vernon L. Marchal and Mr. John F. Maher, for defendants in error.
   Kunkle, J.

This is a proceeding to contest the will of J. E. Kester, deceased. The amended petition of plaintiff in error, Rose Steinle, who was plaintiff in the lower court, sought to set aside the will, which had been duly probated, upon the ground that it was not the last will and testament of said J. E. Kester.

An issue was joined and the case was submitted to a jury with the result that the jury unanimously sustained the said will.

Motion for new trial having been filed and overruled, error is prosecuted to this court.

In brief it appears that J. E. Kester died in July, 1931, without any children surviving him, but leaving his widow, Etta M. Kester, one of the defendants in error; that a few days after the death of J. E. Kester his said widow, together with Mr. Marchal, went to the Greenville National Bank, that being the bank in which Mr. Kester transacted business during his lifetime, and upon examining his safety deposit box discovered a will which had been made several years before. This will was taken by the said widow to her home, and, several weeks afterward, when examining some of the papers and effects of her husband which were contained in a trunk belonging to the decedent at his home, another will of later date was discovered. The will so found in the trunk belonging to the’ decedent is the will which was offered for probate, and was duly probated by tbe probate court of Darke county, Ohio. Tbe will found in tbe safety deposit box of decedent was destroyed. Tbe contents of tbe two wills were in certain respects somewhat similar. Tbe storm center of tbis case revolves around tbe genuineness of tbe signatures to tbis later will, including tbe genuineness of tbe signatures of tbe witnesses to tbe will.

Much testimony of an expert nature was introduced in reference to the genuineness of sucb signatures.

Counsel for plaintiff in error in their- brief rely solely upon two grounds for a reversal of tbis judgment.

Tbe first ground is that tbe verdict of tbe jury was contrary to tbe weight of tbe evidence.

Tbis is not made one of tbe grounds of error in tbe petition in error. An examination of tbe motion for a new trial filed in tbe lower court also discloses that tbe weight of tbe evidence was not made a ground of error in tbe lower court.

Notwithstanding tbis state of tbe record, we have examined tbe testimony, and upon sucb examination are clearly of opinion that a reviewing court would not be justified in disturbing tbe verdict on tbe ground that tbe same is against tbe manifest weight of tbe evidence. There is a sharp conflict in tbe testimony in reference to tbe genuineness of tbe signatures on tbis last will. There is ample testimony in tbe record to support tbe finding of tbe jury that sucb signatures are genuine, if tbe jury believed certain testimony. Tbe special finding of fact made by the- jury supports tbe conclusion that tbe jury did believe tbe testimony which tended to show the genuineness of tbe signatures in question.

If tbe weight of tbe evidence is before us, we do not feel warranted in disturbing tbe verdict of tbe jury upon that ground.

The second error complained of relates to the refusal of the trial court to give a special instruction in advance of the argument.

The special instruction requested and refused is as follows:

“The Court further charges you that'if you find from a preponderance of -all the evidence that the signature of one or both of the subscribing witnesses to the alleged will of J. E. Kester is not the genuine signature of either F. M. Wolf or of Charles J. Herr, then your verdict must be that the paper writing involved in this case is not the valid last will and testament of J. E. Kester.”

This special charge was refused by the trial court because of its failure to incorporate the presumption arising from the probate of the will.

If the charge as requested contains a correct statement of the law, then plaintiff in error was entitled to have same given prior to argument of counsel, and failure to so do would constitute prejudicial error. This rule is well established and does not require citation of authorities.

Section 12083, General Code, provides that, “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.”

We have italicized three words solely for the purpose of emphasizing the issues upon which the order of probate shall constitute prima facie evidence. Such order of probate is prima facie evidence of the attestation as well as the execution and validity of the will.

In the case of West v. Lucas, 106 Ohio St., 255, 139 N. E., 859, the first paragraph of the syllabus holds:

“Instructions by the trial court in a will contest must clearly define the rule that the evidence introduced by contestant, in order that he may prevail, must be a preponderance, outweighing both the evidence produced by the contestee and the presumption of validity that arises from probate of the will.”

See, also, case of Hall v. Hall, 78 Ohio St., 415, 85 N. E., 1125.

From a consideration of the authorities we are of opinion that the trial court properly refused the instruction requested, for the reason that such instruction failed to recognize, or rather to include, the-presumption as to the due attestation, execution and validity of the will arising from the probate thereof.

Finding no error in the record in the respects urged by counsel for plaintiff in error, the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur.  