COMPETENCY OF TESTIMONY IN A WILL CASE.

Court of Appeals for Clark County.

#### Milton J. Baird et al v. Caroline E. Detrick et al.*

Decided, June 29, 1917.

*Wills*— ■Action *to Contest-*— Testimony *of Attorney Not*Incompetent— *By Reason of the Fact that He was a Subscribing Witness*— In*competency of Declarations Made by a Deceased Subscribing Witness.*

1. Where a testator procured his attorney to become a subscribing witness to his will, he thereby expressly consents that said attorney may testify as fully as any other subscribing witness concerning declarations made to him by the testator at or near the ■ time of execution of the will, and must be regarded as having waived the exemption of Section llé94, as to privileged communications.

2. Declarations made by a witness to the will immediately after leaving the room in which the will was' executed do not constitute any ■ part of the *res gesta,*and said subscribing witness having since deceased testimony as to the statements which he then made is . incompetent.

3. Where from the nature of the remarks of counsel which are complained of it is possible that they may have been provoked by remarks of opposite counsel, a reviewing court will not reverse a judgment upon the ground of misconduct of counsel in the absence of the record showing so much of the statements of opposite counsel as would be necessary to disclose whether the remarks complained of were or were not provoked.

*Stafford & Arthur, McGrew & Laybourne, William M. Rockel*and *W. Y. Mahar,*for plaintiffs in error and certain defendants in error.

*Zimmerman & Zimmerman, C. S. Olinger,*for contestees of will.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 23, 1917.

Kunkle, J.

This is an ¡action in wbicb plaintiffs in error seek to set aside tbe last will and testament of Clara J. Mills.

*258An issue was made up in the court of common pleas and the grounds relied upon for setting aside such will were, mental incapacity and undue influence.

The trial resulted in sustaining the will by the concurrence of nine members of the jury.

Motion for a new trial was overruled, and judgment rendered on the verdict.

Error is prosecuted to this court from such judgment.

Various grounds of error are assigned.

We have read the record in this case and have carefully considered the authorities cited in the very helpful and exhaustive briefs which have been filed by counsel.

■ We shall not attempt to quote from the record in detail nor to discuss the various authorities relied upon by counsel. We will merely announce the conclusions at which we have arrived after a careful examination of the record and such authorities.

Plaintiffs in error claim that C. S. Olinger, who was the attorney for the testatrix and a subscribing witness to the will, should not have been permitted to testify concerning certain declarations of the testatrix made to him at and near the time of the execution of the said will.

Upon this question we- find there is some conflict of authority, but we think the weight of authority and the better reasoning upon this subject supports the ruling of the lower court. (See *American and English Encyclopedia of Law,*Vol. 23, page 79; *Thompson on Wills; Page on Wills*and various other authorities cited by counsel.)

The privilege conferred by Section 11494, General Code, is solely for the benefit of the client and may be waived by .the client.

We think when a testator procures his attorney to become a subscribing witness to his will that he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption of Section 11494, General Code.

The testator knows that his will is not to take effect until his death, and when he instructs his attorney to prepare a will along certain lines and requests him to sign the same ,as a wit*259ness, it is presumed that he expects the attorney to testify generally as a witness in establishing such will.

The testa.tor’s requesting the attorney to act as a witness is equivalent to his calling him as a witness for the purpose of establishing the instrument so witnessed as a valid will.

It is also urged with much force that the trial court erred in refusing to permit plaintiffs in error to prove certain declarations alleged to have been made by Dr. R. B. House shortly after the execution of the will. Dr. House was one of the subscribing witnesses to the will. He testified at the time the will was probated, but died before the trial in the lower court.

The rule is well established that the testimony of a witness can not be impeached by showing contradictory statements, unless the attention of the wdtness is first called to such alleged statements and the opportunity is afforded the witness of either admitting, denying or explaining the same.

This rule is not changed by the subsequent death of the witness. (See 15 O. S., page 1.)

It is claimed, however, by counsel for plaintiffs in error that, as to the witness Mrs. Everhardt, the alleged statements of Dr. House were made immediately after coming out of the room in which the testatrix executed her will, and that such statements of Dr. House, one of the subscribing witnesses to tire will, constituted part of the *res gestae.*

The *res gestae*consisted of the execution of the will in question and that was accomplished before Dr. Iiouse left the room in which the wall was executed.

We do not know just how long the will had been executed before the Doctor left the room, but in any event, we are of opinion that Dr. House’s alleged declarations to Mrs. Everhardt did not form any part of the *res gestae.*

It is claimed that the trial court erred in excluding, in chief, the testimony of Mrs. Jauck and others as to certain declarations alleged to have been made by Mr. Olinger, who drew the will.

Substantially all of this testimony was admitted in rebuttal and we are of opinion that the trial court properly excluded the same as testimony in chief.

*260It is further claimed that the trial court abused its discretion in various respects, such as in interrupting certain witnesses; in conducting the examination of certain witnesses to an unwarranted extent; and also in absenting himself from the bench during a considerable portion of the trial.

Before we could reverse the judgment in this case upon any of the above grounds, we would be required to find that the court had clearly abused its discretion in one or more of such respects and that the court had thereby prejudiced plaintiffs in error in the proper presentation of their case.

We concede that even in the trial of a civil case the parties are entitled to the presence of the trial judge during the trial and that it might be embarrassing to counsel to object to the court’s absence from the court room, yet in order to predicate reversible error in the trial of a civil suit upon the absence of the trial court from the court room during a portion of the time it should appear that objection was made to such absence or that the absence of the trial judge clearly prejudiced the rights of plaintiff in error.

We also concede that the trial court should not unduly interfere with the examination of witnesses to the prejudice of either party, yet the trial court has a right to guide tire trial, and if necessary, develop the facts requisite to a fair presentation of the ease.

From a careful examination of the record, we would not feel warranted in finding that the.trial court clearly exceeded its authority in any of the above respects and to the extent of preventing plaintiffs in error from having a fair trial.

Exception is also taken to the admission and rejection of certain testimony.

We have considered all the objections of this nature complained of in the briefs of counsel for plaintiffs in error. In some of these -instances the substance of the testimony either had already been or was subsequently admitted; in other cases the questions were not proper in form and in still other eases the evidence sought to be introduced was incompetent.

We find no error in these respects which we consider prejudicial to plaintiffs in error.

*261It is further claimed by counsel for plaintiffs in error that counsel for defendants in error were guilty of misconduct during the argument of the case to the jury.

We have doubt as to whether the alleged misconduct of counsel for defendants in error has been brought in the record as required by the decision of our Supreme Court in the case reported in 77 O. S., page 529.

Assuming, however, that the evidence of alleged misconduct is properly before the court, it appears that only a portion of the arguments of counsel are presented. The record does not disclose what remarks, if any, were made by counsel for plaintiffs in error which may have provoked some of the remarks now complained of.

In the absence of a full report of the arguments of counsel we would not feel justified in holding that the alleged misconduct of counsel for defendants in error was such as would justify a reversal of the judgment.

Counsel for plaintiffs in error also insist that the trial court erred in giving to the jury in advance of the argument special instruction No. 2 as requested by counsel for defendants in error. This special charge is not as complete as it should have been, but nevertheless it is practically the same, in the respects complained of, as special charge number five, which was given by the court to the. jury in advance of the arguments ,at the request of counsel for plaintiffs in error.

Special charge No. 5 being given at the request of counsel for plaintiffs in error we can not see how it could be prejudicial to also give special charge No. 2 as requested by counsel for defendants in error.

It is admitted that this phaze of the case was properly stated by the court in the general charge to the jury.

We are also of opinion that the alleged misconduct of the jury is not supported by the weight of the evidence.

The newly discovered evidence referred to was largely cumulative and we think the trial court did not err in refusing to grant a new trial on the ground of newly discovered evidence.

There was a sharp conflict in the testimony. A number of witnesses called by defendants in error testified to a state of *262facts which, if believed by the jury, would have justified the verdict which was returned. It is equally true that a number of witnesses called by plaintiffs in error testified to a state of facts which, if believed by the jury, would have required a different verdict.

The decision of the case was largely a question of determining the credibility of the various witnesses and the weight which should be given their testimony. These are questions which are peculiarly within the province of the jury and from a careful consideration of the entire record, we would not feel warranted in disturbing the judgment upon the ground that the verdict is against the manifest weight of the evidence.

We have considered all the assignments of error urged by counsel for plaintiffs .in error in their briefs but finding no error in the record which we think constitutes error prejudicial to plaintiffs in error, the judgment of the lower court will be affirmed. '

If desired, a suspension of the execution of the judgment for twenty days will be allowed, so as to enable counsel to present the case to the Supreme Court.

Allread, J., and Ferneding, J., concur.