Losh v. Brunk , 2 Ohio Law. Abs. 711 ( 1924 )

HAMILTON, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action brought by Brunk to set aside the will of Samuel J. Irvin. The evidence for the plaintiff disclosed that the deceased was of morbid, depraved mentality, that he had been afflicted with various diseases and that, at the instance of his father, a guardian was appointed for him upon the ground that he was insane. The guardianship was continued until Sept., 1918, when it was set aside and the will executed the following April 1. The evidence also disclosed that the testator disliked his daughter ever since she had testified! to certain facts, the inference of which was that he was a thief. In his will he only left the daughter $1,0Q'0. She claimed that the will was executed under undue influence and that he was mentally incompetent to execute the same. A large number of business men testified that the deceased was sane in every respect. The death of the deceased was caused by suicide.

Attorneys — Hayes & Barns and J. T. Doan, for Losh, Executor; Smith, Rogers & Smith, for Brunk; all of Wlimington.

The defendant claimed that the small amount of the gift was consistent in that the deceased disliked his daughter and naturally would not give her what he would have given her had a different feeling existed between them. The jury set aside the will, whereupon the defendant prosecuted error. In affirming the judgment of the lower court, the Court of Appeals held:

1. As no objection was made to the testimony of the wife of deceased upon the ground that the communication was privileged, the question was not reviewable at this time.

2. As the verdict of the jury did not appear to be manifestly against the weight of the evidence, it will not be disturbed by the reviewing court.