Wagner v. Ziegler

• Decision Date: 23 February 1886
• Citation: 4 N.E. 705,44 Ohio St. 59
• Parties: WAGNER v. ZIEGLER.
• Court: Ohio Supreme Court

4 N.E. 705

44 Ohio St. 59

WAGNER v. ZIEGLER.

Supreme Court of Ohio.

February 23, 1886

Error to district court, Auglaize county.

The action below was to contest the will of Frederick W. Ziegler and was commenced by the filing, by the plaintiffs in error of a petition as follows:

‘ Sophia Wagner and William Ziegler, Plaintiffs, against Charlotte Ziegler, Margareta Ziegler, Ricka Ziegler, Mary Ziegler, Freddie Ziegler, Louisa Vossler, Mollie Ziegler Emma Ziegler, William Steinkamp, Christian Steinkamp, Sr. Dr. Christian Steinkamp, Jr., William Cordis, (or Kores,) Louis Cordis, (or Kores,) and Edward Purpus, Executor of F. W. Ziegler, Deceased, Defendants. State of Ohio, Auglaise County-ss. Court of Common Pleas. Civil action. Petition.

‘ Said Sophia Wagner, one of said plaintiffs, says that she is a married woman, wife of Peter Wagner, and that this action concerns her separate estate. Said plaintiffs, Sophia Wagner and William Ziegler, respectfully represent that on or about the thirteenth day of April, 1880, one Fred. W. Ziegler, then a resident of New Bremen, in said county of Auglaize, died testate, leaving a last will and testament of that date which will was, on the nineteenth day of May, 1880, duly probated in the probate court of Auglaize county, Ohio, a copy of said will, etc., is hereto attached, marked ‘ A,’ and made a part thereof. Said F. W. Ziegler died, leaving the following named persons, his widow and heirs at law, to-wit: Charlotte Ziegler, widow, residing at New Bremen, Auglaize county, Ohio. Heirs at law, said plaintiffs, and Margaret Ziegler, widow, and Ricka Ziegler, Mary Ziegler, and Freddie Ziegler, heirs of Henry Ziegler, deceased, residing in the state of Alabama; Louisa Vossler, wife of Michael Vossler, residing in Auglaize county, Ohio, and Mollie Ziegler and Emma Ziegler, of the same place. The following named persons are the legatees of said will, to-wit, Wilhelmina Steinkamp, Christian Steinkamp, Sr., Christian Steinkamp, Jr., William Cordis, (or Kores,) and Louis Cordis, (or Kores,) all residing in Hamilton county, Ohio. Said Edward Purpus, of Auglaize county, Ohio, is the duly-qualified and acting executor of said deceased Fred. W. Ziegler. Said F. W. Ziegler died seized in fee of considerable real estate, and the owner of some personal estate, all of which is described in said pretended will. Said plaintiffs further represent that said will so probated as aforesaid is not the last will and testament of said deceased, because, at the time of execution thereof, said F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will. Said plaintiffs further say that said executor, notwithstanding the facts aforesaid, is threatening to settle and distribute the estate of said deceased in accordance with the terms of said will so as aforesaid probated. Said plaintiffs therefore pray that said pretended will and the probate thereof may be set aside and held for naught, and that, until the final hearing hereof, said executor may be restrained from proceeding under said will, and for all proper relief.'

The will referred to in the petition is as follows:

‘ The last will and testament of Frederick W. Ziegler, of New Bremen, Auglaize county, Ohio: In the name of the benevolent Father of all, I, the said Frederick W. Ziegler, being of sound and disposing mind and memory, considering the uncertainty of continuance in life, and desiring to make such disposition of my worldly estate as I deem best, do make, publish, and declare this to be my last will and testament, hereby revoking and annulling any and all former will or wills whatsoever by me made. First , I desire all my just debts and funeral expenses to be paid as soon as possible after my decease; second , I give and bequeath to my daughter Louisa, married to M. Vossler, my two lots lying in Vogalsangstown, and owned at present by me, to be hers forever; third , I desire that my sister, Wilhelmina Steinkamp, shall have my house and lot in Piqua, to be hers forever; fourth , I give and bequeath to Christ. Steinkamp, the sum of two hundred dollars; fifth , I give and bequeath to William Kores the sum of two hundred dollars; sixth , I give and bequeath to Louis Kores the sum of two hundred dollars. I nominate and appoint Edward Purpus to be the executor of this will.

‘ In witness whereof, I have hereunto set my hand and seal this thirteenth day of April in the year 1880.

F. W. ZIEGLER.' [Seal.]

Issue was joined by the filing, by some of the defendants, of an answer containing the following averments:

‘ Defendants admit each and every allegation set forth in plaintiff's petition, except the allegation ‘ that said will, as probated, is not the last will and testament of said decedent, because at the time of the execution thereof said F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will,’ which allegation the said defendants deny. The above-named defendants, further answering said petition, aver that said will, as probated, is the last will and testament of the said F. W. Ziegler, and that said F. W. Ziegler, at the time of the execution thereof, was of sound mind and disposing memory, and had sufficient mental capacity to make and execute a will.'

A trial was had in the court of common pleas, which resulted in a verdict for the plaintiffs. From the judgment thereon rendered some of the defendants appealed to the district court, and filed in that court an appeal-bond, the condition of which is as follows:

‘ The condition of the above obligation is such that whereas, Wilhelmina Steinkamp, C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes have taken an appeal from a certain judgment setting aside a will of F. W. Ziegler, rendered against them in favor of the said Sophia Wagner and William Ziegler, in the court of common pleas, within and for the county of Auglaize, in the state of Ohio, at the February term, A. D. 1882, thereof, for setting aside the will of Frederick W. Ziegler, deceased, to the district court, within and for said county of Auglaize; now, if the said Wilhelmina Steinkamp, C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required of, or awarded against said C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes by said direct court, then this obligation shall be void, otherwise in full force in law.’

A motion was filed in the district court by the plaintiffs to dismiss the appeal, for the reason that the bond is insufficient and invalid in law, and insufficient in form and amount. This motion was heard upon evidence, and overruled, to which plaintiffs excepted. A trial to a jury followed. At the conclusion of the plaintiffs' evidence, and after argument, the court, finding there was no evidence proving, or fairly tending to prove, the issues on part of the plaintiffs, showing incapacity of the deceased to make a will, directed the jury to find a verdict sustaining the will. Thereupon the jury returned a verdict accordingly. Motion for new trial being overruled, judgment of affirmance was entered, and costs adjudged against plaintiffs, to all which they excepted. Afterwards an entry was made on the journal to the effect that the plaintiffs present to the court their certain bill of exceptions herein, which, being found by the court to be true, is allowed, signed, sealed, and, on motion, is made part of the record of this case. The paper called in the printed record ‘ bill of exceptions' purports to contain the testimony given upon the hearing of the motion to dismiss appeal, and that given at the trial. It is signed and sealed by the judge who presided at the trial, but not by either of his associates.

Von Seggern, Phares & Dewald , for plaintiffs in error.

T. W. Brotherton an...