Niemes v. Niems, No. 15583.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtNICHOLS
Citation119 N.E. 503,97 Ohio St. 145
PartiesNIEMES v. NIEMS et al.
Decision Date18 December 1917
Docket NumberNo. 15583.

97 Ohio St. 145
119 N.E. 503

NIEMES
v.
NIEMS et al.

No. 15583.

Supreme Court of Ohio.

Dec. 18, 1917.


Error to Court of Appeals, Hamilton County.

Will contest by one Niemes against one Niemes and others. From a judgment of the court of appeals, reversing a judgment of the court of common pleas declaring the will not to be a valid last will of John Niemes, deceased, and remanding the case for a new trial, contestants bring error. Judgment of the court of appeals reversed, and that of the common pleas affirmed.



Syllabus by the Court

An action in contest of the validity of a will is designated a civil action by the express terms of section 12079, General Code, and as such is subject to the provisions of Page & A. Gen. Code Supp. § 11455, which permits the rendition of a verdict by the jury on the concurrence of three-fourths or more of its membership.

It is the established law of Ohio that in such an action a lay witness, although not a subscribing witness, who has theretofore given testimony upon which an opinion can reasonably be based, may give his opinion as to the soundness or unsoundness of the mind of the testator.

In such an action it is competent for such lay witness, so qualified, to give opinion as to the capacity of the testator to understand important business matters, although the absence of such capacity need not necessarily disqualify a testator from making a valid disposition of his property. Such testimony is competent as reflecting on the testator's power of thought and comprehension and the general strength of his mental faculties.

Testamentary capacity exists when the testator has sufficient mind and memory: First, to understand the nature of the business in which he is engaged; second, to comprehend generally the nature and extent of his property; third, to hold in his mind the names and identity of those who have natural claims upon his bounty; fourth, to be able to appreciate his relation to the members of his family.

In a will contest, where there was no evidence that testator had been influenced by threats or solicitations or mercenary kindness or attentions, so that a charge thereon was error, it was not prejudicial, where the language of the charge was an abstraction, and the main contested issue was that of the testator's mental unsoundness.

Where, upon the issues made by several defenses to a claim sued upon, a general verdict is found for the defendant, it not being disclosed by answers to interrogatories or otherwise upon which issue the verdict was based, and the record disclosing no error touching either the presentation or submission of at least one of such issues, a finding upon which in favor of the prevailing party would justify a general judgment, which is rendered, error of the trial court in the submission of other issues will be disregarded.

The word ‘complicated’ means consisting of many parts or particulars not easily severable in thought, hard to understand, explain, etc., involved, intricate, confused.

The term ‘family’ may be used to indicate the immediate members of one's household, as wife, children, brothers, and sisters or father and mother, and, in the absence of these closer connections, will embrace such of his relations as, under the laws of descent and distribution, will be entitled to the next estate of inheritance should he die intestate.


[Ohio St. 146]Rufus B. Smith, Cogan, Williams & Ragland, Horace A. Reeve, and John J. Weitzel, all of Cincinnati, for plaintiffs in error.

J. Louis Kohl, Peck, Shaffer & Peck, and Floyd C. Williams, all of Cincinnati, for defendant in error.


NICHOLS, C. J.

In the trial of an action in the court of common pleas of Hamilton county, Ohio, the last will and testament of John Niemes, theretofore admitted to probate in that county, was by the verdict of a jury held not to be the valid last will and testament of the decedent. Judgment was entered on the verdict, and in proceedings in error the court of appeals of Hamilton county reversed the judgment and remanded the case for a new trial. Consulting the journal entry of the court of appeals, we find that the judgment[Ohio St. 147]of reversal was predicated on two alleged errors: First, that the court erred in its general instruction to the jury on the subject of undue influence; second, that the court erred in the admission of evidence of a number of lay witnesses as to the lack of ability of the testator ‘to understand and decide large and complicated business propositions.’

[119 N.E. 504]

The court overruled all other assignments of error, among which was one to the effect that the verdict was contrary to the weight of the evidence; and another to the effect that the court erred in its instruction to the jury that a concurrence of but three-fourths of the membership of that body would be sufficient to return a verdict, the point made being that, since a contest of a will in Ohio is what is known as a special statutory proceeding, it is not embraced within the language of section 11455, Page & A. General Code Supp., providing that in all civil actions a verdict shall be rendered upon the concurrence of three-fourths or more of their number. In the instant case the verdict of the jury was signed by 11 of the jurors.

Another error assigned by those seeking to maintain the will was that the trial court erred in refusing to give a certain special charge as follows:

‘To be able to make a will it is not necessary that a person should have power to understand complicated business transactions.’

The case, on motion, was admitted to the Supreme Court for review.

[Ohio St. 148] The first proposition upon which the court of appeals based its reversal of the common pleas court was that it erred in its general charge on the subject of undue influence. It may be at once conceded that in charging that--

‘if deceived by misrepresentations, or coerced by threats or solicitation or persuasion, or even by mercenary kindness or attention, or influenced by the constant pressure of a dominating or controlling mind which constrained him into executing a will he would not of his own inclination have made, then the jury may find that undue influence has been exerted over the mind of the testator.’

-the trial judge brought to the attention of the jury certain species of undue influence about which no evidence whatever had been offered.

The evidence in fact as to undue influence was but meager; sufficient only, it may be said, to have justified the submission of that branch of the case to the jury. A careful search of the record fails to disclose any testimony tending to prove that the testator had been coerced either by threats or solicitations or by mercenary kindness or attentions. It may, then, be assumed that the court to that extent incorrectly charged the jury on that issue, although it ought to be said that in all other respects the trial judge's charge on the subject of undue influence was most admirable.

We are of opinion that no substantial prejudice can be ascribed to such error, and we arrive at this conclusion, first, because the language improperly used was a mere abstraction, and to attach to it the importance and significance necessary to justify a [Ohio St. 149]reversal of a cause otherwise correctly tried would be going far beyond the proper function of a reviewing court, according to the latter-day conception.

An examination of the record in the case shows conclusively that the issue on which the contestors of the will chiefly relied was the mental unsoundness of the testator. If it be granted that the language is not an abstraction, but given as having direct and concrete application to the case, we are not willing to admit that the error should be charged with the substantiality essential to warrant the setting aside of the verdict of a jury.

We are still further of opinion that if it be granted that the improper inclusion of the language as to the several species of undue influence-which was entirely unsupported by proof-was prejudicial error, the defendant in error cannot take advantage of the error, being precluded therefrom by the doctrine first asserted in Ohio in the case of Sites v. Haverstick et al.,...

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109 practice notes
  • Weis v. Weis, No. 30640.
    • United States
    • United States State Supreme Court of Ohio
    • February 26, 1947
    ...approved and followed the cases of Runyan v. Price, supra, and Dunlap, Exr., v. Dunlap, supra. Finally, in the case of Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503, 506, this court unanimously held that in a will contest a lay witness, although not a subscribing witness, who has given te......
  • Flowers v. Siefer (In re Estate of Flowers), No. L–16–1002
    • United States
    • United States Court of Appeals (Ohio)
    • April 7, 2017
    ...claims upon his bounty; [and] Fourth, to be able to appreciate his relation to the members of his family." Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503 (1917), paragraph four of the syllabus. {¶ 85} There is also a rebuttable presumption that a person is competent unless they have b......
  • Gannett v. Booher
    • United States
    • United States Court of Appeals (Ohio)
    • June 17, 1983
    ...was directed to the standard for determining testamentary capacity as set forth by the Supreme Court in Niemes v. Niemes (1917), 97 Ohio St. 145, 119 N.E. 503, in paragraph four of the "Testamentary capacity exists when the testator has sufficient mind and memory: "First, to under......
  • City of Cincinnati v. Cincinnati Dist. Council 51, Am. Federation of State, County and Municipal Emp., AFL-CIO, AFL-CIO
    • United States
    • United States State Supreme Court of Ohio
    • July 18, 1973
    ...161, 164. Page 211 A contempt proceeding is not a civil action but a special statutory proceeding. See Niemes v. Niemes (1917), 97 Ohio St. 145, 119 N.E. There is a catholicity of authority on the same point from many jurisdictions. The majority agree that such proceedings are sui generis. ......
  • Request a trial to view additional results
109 cases
  • Weis v. Weis, No. 30640.
    • United States
    • United States State Supreme Court of Ohio
    • February 26, 1947
    ...approved and followed the cases of Runyan v. Price, supra, and Dunlap, Exr., v. Dunlap, supra. Finally, in the case of Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503, 506, this court unanimously held that in a will contest a lay witness, although not a subscribing witness, who has given te......
  • Flowers v. Siefer (In re Estate of Flowers), No. L–16–1002
    • United States
    • United States Court of Appeals (Ohio)
    • April 7, 2017
    ...claims upon his bounty; [and] Fourth, to be able to appreciate his relation to the members of his family." Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503 (1917), paragraph four of the syllabus. {¶ 85} There is also a rebuttable presumption that a person is competent unless they have b......
  • Gannett v. Booher
    • United States
    • United States Court of Appeals (Ohio)
    • June 17, 1983
    ...was directed to the standard for determining testamentary capacity as set forth by the Supreme Court in Niemes v. Niemes (1917), 97 Ohio St. 145, 119 N.E. 503, in paragraph four of the "Testamentary capacity exists when the testator has sufficient mind and memory: "First, to under......
  • City of Cincinnati v. Cincinnati Dist. Council 51, Am. Federation of State, County and Municipal Emp., AFL-CIO, AFL-CIO
    • United States
    • United States State Supreme Court of Ohio
    • July 18, 1973
    ...161, 164. Page 211 A contempt proceeding is not a civil action but a special statutory proceeding. See Niemes v. Niemes (1917), 97 Ohio St. 145, 119 N.E. There is a catholicity of authority on the same point from many jurisdictions. The majority agree that such proceedings are sui generis. ......
  • Request a trial to view additional results

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