#### Williamson’s Ex’x v. Williamson.

Oct. 6, 1939.

A. M. Caldwell, Judge.

J. Edward Boltz and E. Eric McLefresh for appellant.

Arthur C. Hall for appellee.

*839Opinion op the Court by

Judge Thomas

Affirming.

William E. Williamson died on July 29,1937, a resident of Campbell County, at tbe age of 84 years. His wife predeceased bim and he left surviving him as bis only beir a son, tbe appellee, Clarence Elmer Williamson. For a long while prior to bis death — and prior to tbe death of bis wife (which occurred in 1931) — be bad served as janitor of one of tbe high school buildings in tbe City of Newport at a salary of $135 per month. In 1932 be fell and fractured bis hip, and the duties of janitor were thereafter performed by bis son, tbe appellee, who in tbe meantime bad married and was living in the home of deceased, where they continued to reside until June 14, 1933. In tbe meantime Edna Eoby Weaver, a half sister of decedent’s wife, moved into bis residence after tbe latter’s death and assisted in operating tbe household and in nursing tbe deceased, although be was able to and did, until at least a short while preceding bis death, occupy a rolling chair in bis home.

Prior to her entry into tbe household tbe members of the family after tbe wife’s death consisted of deceased, bis son and tbe latter’s wife, who lived happily together, with tbe son earning tbe janitor’s salary and devoting all of it to tbe expenses of tbe family. Following tbe half sister-in-law becoming a member of tbe family, (which occurred in 1932), tbe deceased began to assume an observable antagonism toward bis son and tbe latter’s wife, culminating in their leaving tbe residence in 1933 and taking up their abode elsewhere but in tbe same city. However, tbe soil continued to perform the services of janitor until bis father’s death, dividing tbe salary with tbe latter.

On October 17, 1934, tbe deceased executed a paper as bis will, duly subscribed and witnessed according to law. In it be directed tbe payment of bis debts and funeral expenses, and gave to bis son and only beir tbe pittance of $5 — devising all tbe remainder of bis property to Edna Eoby Weaver, bis half sister-in-law, who bad then been a member of bis household for about two years and for a little more than one year after tbe son and bis wife left tbe place. Tbe will was probated in tbe county court of Campbell County in an ex parte proceeding; but in due time the son prosecuted an appeal to tbe Campbell circuit’court in which a trial was bad *840resulting in a verdict finding the paper in contest not to be the last will and testament of the deceased, and which we are informed by briefs was based solely upon the ground that' the testator was unduly influenced to execute it. The motion of appellants for a new trial chiefly relied on the two grounds: (1) Error of the court in overruling their motion for a peremptory instruction; and .(2) that the verdict of the jury is not sustained by sufficient evidence and is flagrantly against it. No others are argued in brief and it will be assumed that they are abandoned; but if untrue, none of them is sustained by the record brought here.

However, we are not at liberty to consider even grounds (1) and (2) — which are the sole ones argued in brief — because of the fact that neither the instructions, nor all of the evidence heard at the trial, has been brought here, the record thus being incomplete. Time was given within which to prepare and file a bill of exceptions including the stenographer’s transcript of evidence, but when that time arrived the stenographer, who had been ill, presented all the testimony that she had been able to transcribe and stated that she was unable to complete the transcription. Appellants, nevertheless, filed what she had transcribed, but in no offered or tendered bill of exceptions did they attempt to incorporate any instruction given, offered or refused at the trial.

The clerk’s transcript on its last page (of date July 27, 1938) contains this order: “Comes defendant and tenders her partial bill of evidence and exceptions herein, and the court took time. ’ ’ The next two volumes of the record contain the testimony first offered by contestees to prove the due execution of the contested paper, followed by lengthy testimony given by numerous witnesses introduced by appellants to prove the charge of undue influence as a ground of contest. At the close of the second volume the stenographer in her certificate thereto stated that the two volumes of testimony so transcribed by her contained the evidence, exceptions, avowals and rulings of the court “to the extent that I have been physically able to transcribe the same to the time that I entered the Jewish Hospital in the city of Cincinnati where I have been and am now confined because of physical illness.” The trial judge in approving the partial transcript, as so certified by the ■ stenographer, stated that it contained the testimony and objections and ruling of the court “to the full extent that the *841■official stenographer of the Campbell Circuit Court was ■able to transcribe her shorthand notes up to the time of her illness on June 22, 1938 # * * and said partial bill is examined and found to- be correct.” Time was then given within which to complete and file the transcription of the evidence and the bill of exceptions, thereby supplementing the matters so certified to by both the stenographer and the judge; but the record brought here shows that nothing further was done, though the index to volume 2 shows that after the close of the testimony of contestant, the contestees introduced the sole devisee, Edna Roby Weaver, but whose testimony — or that of any other witness she may have introduced — is ■entirety absent from the record.

Prom the foregoing recitation it will be seen that we are called upon by the appeal to reverse the judgment of the trial court on questions of the sufficiency of the evidence to support the verdict when all of the evidence heard at the trial has not been submitted to us. The rule of practice is universal that in the absence of ■all the testimony heard at the trial, this court (when the record shows that other evidence was heard) will presume that the parts of the testimony not brought here would sustain the verdict of the jury, and likewise support the instructions of the court if complaint was made thereof but no complaint of the instructions in this case is contained in appellants’ motion for a new trial. The rules of practice referred to are so universal as to require the citation of no authority in support of it, since ■there is no case to the contrary.

However, in passing it might be said that the testimony that was transcribed, filed, and brought here as a part of the record amply and abundantly sustains the verdict of the jury on the issue of undue influence, and under the rule of practice supra it will be presumed that the testimony introduced by contestee did not overcome that proof, but on the contrary it may have strengthened it.

There is no alternative therefore for us to adopt -except to affirm the judgment, which is accordingly done.