Shupp v. Farrar

• Citation: 88 N.E.2d 924,85 Ohio App. 366
• Parties: SHUPP et al. v. FARRAR et al.
• Decision Date: 14 February 1949
• Court: United States Court of Appeals (Ohio)

85 Ohio App. 366
88 N.E.2d 924

SHUPP et al.
v.
FARRAR et al.

Court of Appeals of Ohio, Sixth District, Huron County.

Feb. 14, 1949.

Action by Shupp et al. against Farrar et al. to contest will.

From a judgment from the probate court directing jury to return a verdict sustaining the will contestant appealed.

The Court of Appeals, Fess, J., affirmed the judgment holding that where witness to testator's signature on will was not adjudged insane until three months subsequent to execution of will, the will was valid.

[88 N.E.2d 925]

Syllabus by the Court.

1. With respect to a transaction by a person prior to adjudication of insanity, no presumption of insanity at the time of such transaction arises from evidence of such adjudication, but evidence of a subsequent adjudication within a reasonable time after the transaction may be considered along with direct evidence relating to the competence of such person at the time of the transaction.

2. In a proceeding to admit a will to probate, the determination of the competency of a witness to the will lies within the discretion of the Probate Court.

3. Evidence that a witness to a will was adjudged insane within three months after witnessing the will in contest is insufficient to present as an issue of fact for the jury whether the writing produced is the last will of the testator.

Young & Young, Norwalk, for appellants.

Allan G. Aigler and J. Allen Vickery, Bellevue, for appellees.

FESS, Judge.

This is an appeal from a judgment sustaining a will. At the conclusion of testimony on behalf of the contestants, the trial court on motion of contestees directed the jury to return a verdict sustaining the will.

The first assignment of error is that the judgment is contrary to law because the will was not attested and subscribed by two or more competent witnesses as required by Section 10504-3, General Code. The second assignment of error is that the court erred in directing the verdict where there was evidence of fraud, undue influence and lack of testamentary capacity. As to the second assignment, we find there was no credible evidence of such claims.

As to the first assignment of error, the record of probate discloses that the will was executed and witnessed by two persons on August 8, 1947. The testator died on August 22 and on August 27, 1947, ‘the subscribing witnesses to said will having appeared in open court, were duly sworn and examined according to law as to the due execution and attestation of the said will and the testimony of said witnesses was reduced to writing and filed.’

One of the attesting witnesses was adjudged insane...