Gilbert v. Durlist , 1 Ohio Law. Abs. 507 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

This was an action to contest the validity of a will of one Edward Gilbert, deceased. The deceased left surviving him a widow, a son and a daughter. This action was brought by the son upon the ground that the testator was of unsound mind when he made the will and was executed under duress. The will was executed in Cleveland in April, 1919, and the deceased died in November of the same year. The Kevidence disclosed that after Gilbert had become ery sick he sent for his daughter to come to Cleve-md. This she did, and finally found it necessary to make arrangements to remove him to her home in the country. Before leaving Cleveland, Gilbert sent for a lawyer and willed all his property to his daughter, and also executed a quit claim deed to her for the same. Gilbert was separated from his wife at the time, and had entered into a separation agreement with her whereby he had deeded to her certain property. The evidence was in conflict as to the mental incapacity of the testator. The jury returned a verdict in favor of the daughter, thereby sustaining the. will. The s i-hceupon prosecuted error from the Common Pleas Court at Bowling Green. In sustaining the judgment of Judge Mc-Clelland of the Wood County Common Pleas, the Court of Appeals held:

1. It cannot be said that the finding of the jury that the testator was sane at the time he made the will was manifestly against the weight of evidence.

2. In the contest of a will where the mental capacity of the testator is involved non-expert witnesses may testify as to observations and conversations had with the testator, and express an opinion as to his mental capacity based upon those observations or conversations.

3. Although a testator may have no property at the time a will is executed, the will is not invalid because of this fact alone, as the testator may acquire other property prior to his death upon which the will could operate.