WILLS — WITNESSES.

[Wood Circuit Court,

October Term, 1897.]

King, Haynes and "Parker, JJ.

#### Christina I. Roush v. James H. Wensel et al.

1. Construction of a Will Partly Printed and Partly Written;

The fact that a will is partly printed and partly written, does not make it invalid.

2. Contesting a Will.

A plaintiff contesting a will on the ground that the testator was without testamentary capacity, having called as a witness in chief one of the devisee’s, who is a defendant, and whose interests are adverse, will not be permitted to inquire of such witness at that stage of the case, whether he has not admitted or declared that that the testator was incapable of transacting business. It is not competent to prove the incapacity of the testator in that way.

3. Non-Expert Witness will not be Permitted To Testify as to Mental Condition of Testator.

A non-expert witness will n'ot be permitted to testify to his opinion of the mental condition of a testator until he shall have testified to facts within his knowledge tending to throw light upon such mental condition and forming a basis for such opinion.

4. Cross-Examination of a Witness Upon the Mere Assumption that he-is an Adverse Witness.

A party calling a witness who does not appear to have any interest in the controversy, will not be permitted to cross examine him upon the mere assumption that he is an adverse witness.

5. Examination of Party’s Own Witness as to Statements Made out of Court,

A party will not be permitted to ask his own witness if he has not made certain statements out of court, unless such witness has testified to facts inconsistent therewith, and the party has been surprised by such testimony.

6. Examination of a Witness Supposed to be Adverse.

A party may not call a witness supposed to be adverse, in anticipation of his being called by the other side, and elicit from him answers otherwise incompetent, with a view of laying ground for his impeachment.

Error to the Court of Common Pleas of Wood county.

Parker, J.

(orally.)

On June 25, 1896, Christina Roush filed her petition in the court of common pleas of this county attacking the validity of a will made by-John Wensel, making defendants to her petition James H. Wensel and all other persons who appear to be interested as required by sec. 5859, Rev. Stat. The date of the will referred to is January 25, 1896. Its validity is attacked on the following grounds:

> First — That said John Wensel at the time of said paper writing was not of sound mind and memory, but by reason of extreme old age, long continued ill health and protracted sickness, he was mentally incapacitated from making any valid will or a proper distribution of his property.

> Second — That the said John Wensel at the date of said paper writing was under restraint and was coerced into signing the same by the undue influence of the defendant, James H. Wensel, and by false and fraudulent representations of the said James H. Wensel and certain other persons, who urged him continuously to make the so-called will in the manner and form in which it now appears.

> *142Third — That the said paper writing, purporting to be the last wd! and testament of the said John Wensel was by him in his lifetime revoki d.

> Fourth — -That the said supposed will is not in writing as required by sec. 5916, Rev. Stat. of Ohio.

The will in question with the proof and probate is with the paper.-, and it appears that part of it is written and part of it is printed; the, parts which are printed being the introductory clauses and the testamentary clause. I may as well give the parts that are printed. It starts out in print: “ The last will and testament of” and then is written in “John Wensel,” then printed “of” and then written “Montgomery township, Wood county, Ohio,” and then printed “In the name of the Benevolent Father of All: I, the said,” then written “ John Wensel,” then printed “ 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 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,” then written “ by my son James H. Wensel.” Then printed, “ Second: I give and bequeath,” and then'follows in writing about two pages of devises and bequests of his property, and then at the close of the will is printed “ I nominate and appoint,” then written “ my son, Tames H. Wensel,” printed “to be executor of this will,” written “ I desire that no appraisement be made,” printed “ In witness whereof I have hereunto set my hand and seal this,” written “ 25th,” printed “ day of,” written “January,” printed “in the year eighteen hundred and ninety,” written “six,” and the name of the testator is signed. The clause following is partly written and partly printed.

Now it is said that because these parts which I have mentioned are printed, the will is invalid, and we are referred to sec. 5916, Rev. Stat., in support of that claim. This section was amended April 17, 1896, sometime after the execution of this will, but before the death of the testator, he having died on June 5, 1896. At the time this will was written the statute read as follows :

> “ Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.”

The amendment consists of the addition of the following words “and may be handwritten or typewritten,” so that it now reads, “ Every' last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be handwritten or typewritten, and such will shall be signed at the end thereof, etc.” It seems to us that there was much less difficulty about the matter before the statute was amended. That it was easy enough to arrive ata conclusion, before this amendment of the statute, that a will printed or partly printed would be a written will; but the legislature seems to have deemed it necessary to make it more specific as to typewritten wills, and in doing so they have put into the statute something which throws a doubt upon the validity of a printed will, or one partly printed

Nevertheless we conclude that the subject is covered by another provision of the statute. Section 4947, Rev. Stat., is the first section of *143Part Third, remedial part of the Rev. Stats. The chapter on “Wills” is also a part of Part Third of the Rev. Stats. Section 4947, Rev, Stat., reads as follows : “In the interpretation of Part Third, unless the context shows that another sense was intended, the word ‘person’ includes a private corporation, ‘writing’ includes ‘printing,’ etc.” So that we hold that “writing” as used in sec. 5916, Rev. Stat., includes “ printing,” and that a printed will signed by the testator is valid.

After tlie plaintiff had rested her case, the defendant moved the court to direct the jury to return a verdict for the defendants in said cause, -which motion the court sustained and directed the jury accordingly, to which plaintiff excepted, and a verdict was returned by the jury accordingly. Thereupon the plaintiff undertook to prepare a bill oí exceptions incorporating all of the evidence so that the question of whether the court erred in sustaining this motion might be submitted to this court. Now we find that the first thing that was offered by the defendants in evidence, as required by the statute, was this will and the record of probate. That part of the bill of exceptions reads as follows : “The defendants offered in evidence the record of probate of the will of John Wensel, deceased, which is hereto attached marked “Exhibit A” and made a part of the record in this cause; ” but it is not attached. It is not made a part of the bill of exceptions. The rules require that any exhibit that might be made a part of the bill of exceptions shall be attached to the bill. There are some things of course that cannot be attached; that it is physically impossible to attach to a bill ot exceptions, and therefore the attaching of such exhibits may be excused or dispensed with. Notwithstanding that this exhibit has not been attached, we have looked into and have considered the questions raised, though we aie not required to do so and are not certain that we have any authority to do so, but our conclusions about the matter are such that no harm can come from it.

Nowon the trial of the case, the defendant, James H. Wensel, was called by the plaintiff in chief to maintain the issues on her part and was asked certain questions about declarations made by himself as to the mental condition of the testator and to the effect that the testator was not capable of transacting business and should have a guardian. We cannot see how at that stage of the trial that kind of questions, especially by counsel for the plaintiff, of a witness whom he had put upon the witness stand to support his claim, could be competent. We can hardly see how it would be competent at any stage of the case. It certainly wouid not be competent for the purpose of showing imbecility or want of testamentary capacity on the part of the testator to call a witness and ask him if he had not stated to someone that the testator was not competent to transact business, with a view of eliciting from him a declaration or admission that he had so stated. Nor would it be competent to call as a witness a party to the suit, assuming that he was adverse, and undertake to -lay the ground for his impeachment before he h.id been made a witness by anyone else for any purpose He might not be produced as a witness upon the part of the defendants in the case at all; then of what use or consequence would it be to call him and ask him certain questions, and then undertake by other witnesses to impeach him ? It would be like setting up a man of straw and knocking him down again, and would be making no progress in the case at all. We find no error in the ruling of the court upon these questions. On page 16 of the *144record Mr. Van Voorhis,a witness on behalf of the plaintiff, was asked the following questions:

> “I desire to ask you now Mr. Van Voorhis,from what you saw of his condition and from the situation, and from the facts that you have stated, was he capable of carrying on ordinary business ? ”

The defendant objected and the court asked: “What time?” and counsel answered “ in January, 1896. ” It appears that the will was made on or about January 25, 1896. The court sustained the objection and counsel for plaintiff stated, “we except, and expect to show that this party would say that he was not capable of performing the ordinary business-affairs of life.”

Now the witness Van Voorhis was not an expert, and it is not pretended that he was either a physician or expert on mental diseases, but he is asked to testify from his knowledge of certain facts. He is asked to express an opinion after having made certain observations. Hooking into that which preceeds the question to which I have referred, and which is supposed to form a basis for this inquiry, we find that the witness has testified that the testator was sick at the time he was referring to,- and had been sick for some time, and he makes it very clear by his testimony that the testator was physically weak. He also slates that the last time he was there he thought the testator was “a little flighty.” Just when this last time was is not very clear; but that is the most he says, the strongest statement that he makes tending to show that anything whatever had even temporarily affected the mind of the testator. He was asked this question further on :

> “Now state to the jury what, if any, changes you noticed and what they were?” Answer: “Well, I don’t know as I can answer that question. ”

> “Physically, what difference did you notice ?” Answer : “I said he was fee.ble.”

> “Did you notice any difference in his mental condition,” (that is to say, in his condition while he was sick from what he had observed while he was well ?) Answer: “No, I don’t think I did; he did not say much. I generally asked him how he felt and niade a iew remarks and that is all that was said. ”

Now upon that kind of preliminary examination the plaintiff claims the right to ask the witness and have him testify as to the mental condition or Capacity of the testator. A non-expert witness may testify to his opinion of the mental condition of a person in connection with certain facls previously related and upon -which he basis such opinion. He must stale his observations and upon what he founds his opinion, but it must appear that those facts, those circumstances are such as have a tendency, at least in some degree, to indicate mental weakness. There is nothing whatever in the testimony of this witness of that character, and nothing that we think would authorize him to express any opinion as to the mental condition of the testator. These observations apply to another witness whose name I do not now recall. There is a question of another character farther along in the record which was excluded, but that is covered by what I have stated about the testimony that plaintiff attempted to elicit from the witness James H. Wensel. At page 50 and 51 of the bill of exceptions it appears that while Fred Heminger was testifying on behalf of the plaintiff the following questions were asked :

> *Q.*“Now, I will ask you if you had any conversation with Henry Wensel in relation to the guardianship of the old man ?”

*145*James & Beverstock,*attorneys for plaintiff in error.

*Baldwin &*Harrington, attorneys for defendants in error.

Defendants objected, and exception.

> ,Q. “I will ask you, Mr. Heminger, if on or about June 20, 1896, in Bowling Green, Ohio, in conversation with Mrs. Roush and J. A. Bush, you did not state to them that you stopped Henry Wensel from coming here to have a guardian appointed for the old man about the time Kabig got the stock two years ago ? ”

Defendant objected and exception.

> O. “I will ask you as to whether on or about sometime in the year 1895 or 1896 you did not state to Dan Heminger — ”

Defendants objected; sustained and exception, and the court said to plaintiff’s counsel: “ The record may show that the court will not allow counsel to cross-examine his own witness.”

We can see nothing in the record that would authorize this kind of questioning. Counsel does not seem to have been taken by surprise by any statement upon the part of the witness. He simply puts him upon the stand and attempts to elicit by his cross-examination, statements that counsel seems to have knowledge of. There is no offer to prove anything in answer to any of these questions, and that is sufficient reason for disregarding the exception ; and we think the ruling of the court was correct upon the ground that the court places it- — -that there was nothing in the circumstances that would authorize the plaintiff to cross-examine his own witness.

As I have stated, the court directed a verdict. We have looked carefully through this record and we cannot find any evidence tending to support the allegations of the petition to the effect that John Wensel was not of sound mind and memory at the time he made this will, or that he was under restraint or coerced, or that there was any fraud practiced upon him, or that he had in his lifetime revoked his will, and, therefore, we hold that the court did not err in directing the verdict, and the judgment will be affirmed.