Shupp v. Farrar

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFESS
Citation88 N.E.2d 924,85 Ohio App. 366
PartiesSHUPP et al. v. FARRAR et al.
Decision Date14 February 1949

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 on November 24, 1947. In the recerd of such adjudication, which was introduced as an exhibit in the case, there appears a medical certificate containing the following statements:

‘7. Was the present attack gradual or rapid in onset? Gradual.

‘8. When was any peculiarity first noticed and in what way? May 25, became

[88 N.E.2d 926]

noticeably cross and irritable without just cause. * * *

‘11. What is the supposed cause of the mental illness? Following accident and long home confinement.’

As to the claim that the judgment is contrary to law, this evidence is wholly insufficient to warrant finding as a matter of law that the will was not executed according to law on the ground that one of the witnesses was incompetent.

Although we may not be required to consider it, the query arises whether under the evidence in this case the question of the competency of the witness was one for the jury and, if so, whether there was sufficient credible evidence to submit the question to the jury.

The order of probate of a will is prima facie evidence of its due attestation. Section 12083, General Code.

A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or since the probate have become incompetent, shall be admitted in evidence on the trial. Section 12084, General Code. The...

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7 practice notes
  • Johnson v. Warden, Chillicothe Corr. Inst., Case No. 2:16-cv-985
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 27 Marzo 2020
    ...No. 824578, 1983 WL 5309, *1 (Nov. 9, 1983), citing State v. Wildman, 145 Ohio St. 379, 61 N.E.2d 790 (1945) and Shupp v. Farrar, 85 Ohio App. 366, 88 N.E.2d 924 (6th Dist.1949). Beyond the discussion at the May 13 status conference, however, appellant did not move the trial court to hold a......
  • Childress v. Nordman, No. 532
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 2 Diciembre 1953
    ...affirmed in 237 N.Y. 509, 143 N.E. 722, and reargument denied in 237 N.Y. 563, 143 N.E. 743; Shupp v. Farrar, 85 Ohio App. Page 761 366, 88 N.E.2d 924; Champlin Refining Co. v. Smith, 190 Okl. 287, 123 P.2d 253; Vacuum Oil Co. v. Quigg, 127 Okl. 61, 259 P. 858; Cloutier v. Lapane, 64 R.I. 1......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...v. Parzoo, 52 Or. 452, 97 P. 755, that presumption is prospective in its operation from the date of the adjudication, Shupp v. Farrar, 85 Ohio App. 366, 88 N.E.2d 924; First Christian Church in Salem v. McReynolds, supra, and not retrospective. Rath's Committee v. Smith, 180 Ky. 326, 202 S.......
  • State v. Edna Finley, 98-LW-2378
    • United States
    • United States Court of Appeals (Ohio)
    • 19 Junio 1998
    ...established it is said that the law will presume that condition to continue for a reasonable length of time." Shupp v. Farrar (1949), 85 Ohio App. 366, 369-370, 40 O.O. 239, 88 N.E.2d 924. The presumption as to both competence and incompetence is rebuttable. Id. at 370. These cases are cons......
  • Request a trial to view additional results
7 cases
  • Johnson v. Warden, Chillicothe Corr. Inst., Case No. 2:16-cv-985
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 27 Marzo 2020
    ...No. 824578, 1983 WL 5309, *1 (Nov. 9, 1983), citing State v. Wildman, 145 Ohio St. 379, 61 N.E.2d 790 (1945) and Shupp v. Farrar, 85 Ohio App. 366, 88 N.E.2d 924 (6th Dist.1949). Beyond the discussion at the May 13 status conference, however, appellant did not move the trial court to hold a......
  • Childress v. Nordman, No. 532
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 2 Diciembre 1953
    ...affirmed in 237 N.Y. 509, 143 N.E. 722, and reargument denied in 237 N.Y. 563, 143 N.E. 743; Shupp v. Farrar, 85 Ohio App. Page 761 366, 88 N.E.2d 924; Champlin Refining Co. v. Smith, 190 Okl. 287, 123 P.2d 253; Vacuum Oil Co. v. Quigg, 127 Okl. 61, 259 P. 858; Cloutier v. Lapane, 64 R.I. 1......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...v. Parzoo, 52 Or. 452, 97 P. 755, that presumption is prospective in its operation from the date of the adjudication, Shupp v. Farrar, 85 Ohio App. 366, 88 N.E.2d 924; First Christian Church in Salem v. McReynolds, supra, and not retrospective. Rath's Committee v. Smith, 180 Ky. 326, 202 S.......
  • State v. Edna Finley, 98-LW-2378
    • United States
    • United States Court of Appeals (Ohio)
    • 19 Junio 1998
    ...established it is said that the law will presume that condition to continue for a reasonable length of time." Shupp v. Farrar (1949), 85 Ohio App. 366, 369-370, 40 O.O. 239, 88 N.E.2d 924. The presumption as to both competence and incompetence is rebuttable. Id. at 370. These cases are cons......
  • Request a trial to view additional results

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