Hutson v. Hartley

Citations

• 72 Ohio St. (N.S.) 262

Syllabus

<p>Contest to set will aside — As lost or spoliated will — After probate record introduced by defendant — Burden remains upon plaintiff to establish will — Shifting of the burden of proof — Not error for court to charge that burden is upon plaintiff, when —Law of wills — Question of evidence.</p> <p>1. In the trial of a contest to set aside a will admitted to prohate by the probate court as a lost or spoliated will, after the probate record has been introduced by the defendant, the burden remained upon the plaintiff to establish that the will so admitted to probate and record is not the last will of the deceased, and such burden does not shift to the defendant upon proof by the plaintiff tending to show that the will was, shortly before his death, in the custody of the testator and could not be found among his effects shortly after his decease.</p> <p>2. In such case, where the allegation of the petition is that the paper so admitted to probate and record is not the last will of the deceased; that the testator in his lifetime revoked his will by destroying it, and that said will was not lost or spoliated after his decease, and the ■ proof of the plaintiff tended to show only that the testator did himself destroy the will and that it was in his custody shortly before his decease and could not be found shortly after, it is not error for the trial court, as part of a charge which in all other respects gives correct rules of law applicable to the case made by the evidence, to charge the jury that the burden is upon the plaintiff to establish that the paper writing is not the testator’s last will, and that the plaintiff must establish, by a preponderance of the evidence, that the testator did during his lifetime destroy the will with the intention of revoking it.</p>