TRIAL JUDGE WITHOUT AUTHORITY TO DIRECT A VERDICT IN A WILL CASE.

Court of Appeals for Union County.

#### Blanch McFarland and Ira Tomlin, by Lee Strause, His Guardian ad Litem, and also Legal Guardian, v. James E. Clark et al.

Decided, March 14, 1918.

*"Wills*— Contest *of*— Trial *Judge Without Authority to Weigh the Testimony*— On *Motion for a Directed "Verdict*— Statement *to Jury "Need Not Cover All the Evidence to "be Offered*— Nor *is Counsel Restricted by Such Statement as to the Evidence He May*Offer— *Hypothetical Questions.*

1. In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the *prima facie*case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court ■to ignore the testimony of the physicians and direct a verdict for defendants.

2. A party is not required to state, nor is he limited by what he does state, as to what the evidence in the case will be; hence failing to make reference in a trial statement in a will contest, to a *218fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.

3. A hypothetical question should not be excluded because it is not framed upon the best evidence; it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.

*Cameron & Cameron,*for plaintiffs in error.

*Brucker, Voegle & Henkel*and *Robinson & Hoopes,*contra.

Hughes, J.

This was an action commonly known as a will contest under the statutes.

The record discloses- that there was no evidence offered by the contestant tending to prove a lack of mental capacity to make the will on the part of the testator, nor tending to prove undue influence (there being no other issues suggested throughout the record), except the evidence of two physicians. These two physicians had no personal acquaintance with the testator, but in answer to a hypothetical question, based upon facts that had been testified to with more or less clearness by other witnesses, stated that in the opinion of each the testator had not sufficient mental capacity to make a will.

At the close of the evidence the court, upon the motion of the defendants, directed the jury to return a verdict in favor of the defendants, declaring the paper writing to be the last will and testament of testator.

This was done by the trial court as he then stated, “leaving out the question of the hypothetical question to the two physicians because their answers were based upon statements that were made to them and not upon the facts in the case; they had no personal knowledge or acquaintance with the party,” upon the theory that in a will case the trial court is not bound by the scintilla rule, but is required to first weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the *prima facie*case made by the introduction in evidence of the original will and the record of its probate, by the defendants.

*219There is to be found authority for this proposition, such as the ease of *Gomien*v. *Weidemier,*27 C.C.(N.S.), 177, and *Kammann*v. *Kammann,*26 C.C.(N.S.), 60, and the eases commented upon in the above named authorities.

In a will contest case the issues are to be first made up and then tried by a jury, and we can see no reason for making an exception of these cases and permitting the court at any stage of the proceedings to weigh the evidence. The contestant has as much right to have the issues of fact determined by the jury in these cases as he has in any other case in which he is entitled to a jury trial.

It is argued that had the verdict of the jury been in favor of the contestant, the court would have been required to set aside the same as against the weight of the evidence, and he therefore was obliged to direct a verdict because of this fact, in conjunction with the fact that the defendants started with a *prima facie*ease under the statute, which they claim it was the province of the court to say had not been overcome.

Defendants had, ’tis true, made a *prima facie*case by the introduction of the will and the probate record, yet it was the right of the contestant to have the facts in the ease determined by a jury, and when she had offered evidence tending to prove each material fact involved in the issues, it became just as much a question of fact for the jury in this ease as in any other ease, and there can be no reason why the trial court should be authorized to.weigh the evidence to the extent of determining whether or not it was sufficient to overcome this *prima facie*case, and if in his opinion it was not to direct a verdict.

It can as well be said in cases of this kind as in the trial of any other jury case, quoting Justice Ranney:

> “Aside from the fact that such a practice involves an assumption of power by the court which the 'Constitution and the laws have committed to the jury, in the very ease supposed, the plaintiff would have good cause to complain of injury. A non-suit puts him out of court, and charges him with the costs; a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the bene*220fit'of the statute limiting the power of the court, in granting new trials, to not more than two to the same party.” 4 O. S., 628, at 647.

If the rule were otherwise, what is there to prevent the court from weighing all the evidence that has been offered in any will ease and passing judgment upon it by saying that it is not sufficient to overcome the *prima faicie*case ? Why could not the court in any ease say that because the witnesses who have testified against the will would profit by setting it aside, are prejudiced and their evidence can not be considered as overcoming this *prima facie*case ? Or, why could not the court say that those numerous witnesses, who are but business acquaintances, who have testified to the mental incapacity of a testator, are not to be considered competent to overcome such *prima facie*ease, because they lack an intimate daily acquaintance sufficient to pass reliable judgment?

There is no reason suggesting itself to us why a jury trial in a will case is any other than a common law trial by jury. This we believe is recognized by our Supreme Court in the language it has used in the opinion in 44 O. S., page 59, at page 67.

At any rate the statute provides for trial of the issues by a jury, and this means issues of fact; and when it is a question of fact the jury, and not the court, must determine it.

> “If this were a case for the jury, under the issues pleaded and the evidence offered, then the plaintiff had fhe constitu* tional right to a verdict by the jury.” 92 O. S., 387, at 389.

Upon a motion to direct a verdict in these cases as in any other case, the court must review the evidence, concede the truth of every fact which is tended to be proven by the evidence, and when he has found some evidence tending to prove each essential fact, his duty is discharged and it then must be submitted to the jury.

The reasoning of Justice Donahue in 93 O. S., 152, at 155, while not a will case, can be applied to this ease with much soundness.

*221The only difference in the burden of proof resting upon a contestant in a will case and the burden resting upon an affirmative side in other civil oases is that, in a will case he must furnish evidence sufficient to preponderate not only against the evidence offered for the will, but also to preponderate against that presumption arising from the order of probate and the will itself. When he has offered evidence tending to meet these requirements, there seems no good reason why he should not be entitled to have his case weighed and considered by the jury.

In the case at bar the trial court left out of consideration the testimony of the two doctors, yet by moving to direct a verdict the truth of the fact testified to by them is conceded; that is, that the testator had not the testamentary capacity to make a will. This being conceded true, the paper writing could not be the last will and testament.

It was the province of the jury then to weigh this evidence .and to determine whether it was of probative value sufficient to overcome the *prima facie*ease and the other evidence in favor of the will. If it had been found sufficient and the court should have then set aside the verdict as against the evidence, it is the right of the contestant to resubmit his case upon the same evidence, and if successful on the second trial to be held secure against a second setting .aside on the same ground. The court, therefore, was in error in directing a verdict.

The record discloses other errors, in themselves not of sufficient importance to reverse, to which attention is called.

First. The court rejected evidence of intemperance because no reference was made to such proof in the trial statement. This was error. A party is not required to state, nor is he limited by what he does state as to what the evidence will be. Evidence that is competent, material or relevant, should be admitted whether reference is made thereto in the trial statement or not.

Second. The first hypothetical question was not permitted to be answered because it was not framed upon the *best*evidence, as the court said. This is not a correct rule. A hypothetical question is proper .and should be permitted to be answered, if *222it is supported by evidence tending to prove the facts therein enumerated. What may be termed the best evidence in a case is not required to be sifted out and embodied in the question.

Kinder, J., and Crow, J., concur.