Wadsworth v. Purdy

Citations

• 21 Ohio C.C. Dec. 110

Syllabus

<p>ERROR — WILLS.</p> <p>1. Argument in Will Contest Pressing Order of Probate Judge to Influence. Jury Constitutes Misconduct of Counsel.</p> <p>An order admitting a will to probate by force of Sec. 5926 Rev. Stat. is primei facie evidence of its validity only. Hence, in a proceeding to-contest a will under Secs. 5858 Rev. Stat., et seq., permitting a statement, by counsel in argument to the jury to the effect that the probate judge, experienced in such matters, had admitted the will to probate on the- ■ same evidence heard in the proceeding to contest and that it would be presumptuous in the jury to hold differently, constitutes misconduct of counsel prejudicial to the rights of contestants, for which a judgment based on a verdict sustaining the will is reversible.</p> <p>2. Failure to Call Attention to Errors Excepted to on Motion for New Trial does not Preclude Review on .Error.</p> <p>A trial court is presumed to know what errors occur at the trial of a cause- and, having certified that a bill of exceptions, showing the errors excepted to is true, the fact that the attention of the court was not called thereto by affidavit or otherwise upon a motion for new trial cannot preclude a reviewing court from the consideration thereof on error.</p> <p>3. Capacity to Attend to Ordinary Business, to Know and Understand Business in which Testator was Engaged Lacks Essential Requisites of Testamentary Capacity.</p> <p>Mental capacity to make a will requires a comprehension of the nature-of the act testator is performing, an understanding of the extent of property of which he is disposing, a realization of the relation which he-holds to those who have claim upon him and ability to make a rational selection among them; “capacity enough to attend to ordinary business, and to know and understand the business he was engaged in,” lacks essential requisites of testamentary capacity to make a will and to so charge is misleading and prejudicial.</p> <p>4. Eccentricities and Delusio