Adams. Exr. v. Foley , 36 Ohio App. 295 ( 1929 )

Plaintiffs in error were the defendants below and the defendants in error were the plaintiffs.

On the 16th day of September, 1926, William Foley and others, infants, by their next friend, S.A. Foltz, filed their petition to set aside the will and codicil thereto, averring among other things that: "A certain writing purporting to be the last will and testament of Hanorah Foley, bearing date of February 20, 1926, and a codicil added thereto of the date of March 26, 1926, was admitted to probate by the Probate Court of Richland county." Plaintiffs below prayed for an order that an issue be made up.

The defendants filed no answer.

The court made up an issue on the journal, in the following words and figures, to wit:

"It appearing to the court that the plaintiff in this case seeks to set aside a certain paper writing purporting to be the last will and testament of Hanorah Foley, late of the county of Richland, deceased, which has been admitted to probate according to the statute in such case made and provided, and no issue being made by the pleadings, it is now ordered that the validity of said will be, and hereby is, put in issue between the parties, and that it be ascertained by the verdict of the jury whether said writing is the last will and testament of said Hanorah Foley or not."

Trial was had, the jury found for the plaintiffs below, the trial judge overruled a motion for a new trial, and from the judgment entered on the verdict error is prosecuted by plaintiffs in error, who seek a reversal of the judgment so entered and predicate same upon three assignments of error:

(a) Error in the admission of evidence.

(b) Error in the general charge of the court.

(c) That the verdict and judgment are against the manifest weight of the evidence.

The bill of exceptions contains more than four hundred pages of closely typewritten matter, which required some time to read and analyze. Under the assignments of error it was necessary that the court read with care the record before us, hence the seeming delay in reaching a conclusion in the case.

As to the claimed error in the admission of evidence, we do not deem it necessary to set out the evidence objected to. The record shows that the trial judge stated to the jury, at the time, the purpose for which the evidence was admitted, and we hold the court, in doing so, committed no error of a prejudicial nature.

Courts are bound to exercise discretion in the admission of evidence. While the materiality of the evidence sought to be excluded may be questioned, yet in order to be prejudicial it must not only be material to the issues to be determined, but erroneous as well, and we do not find both of these elements in the admitted evidence.

If evidence is competent for any purpose, it is admissible.Cleveland, Columbus Cincinnati Rd. Co. v. Terry, 8 Ohio St. 570,580; Pennsylvania Co. v. Mahoney, Admx., 22 C.C., 469, 12 C.D., 366.

Was there error in the general charge to the prejudice of the plaintiffs in error?

Counsel for plaintiffs in error say that nowhere in the charge as given to the jury by the court is there any mention of the codicil and that such omission is reversible error. They further urge that the proper issue to be submitted under the facts to the jury was whether or not the writing produced was the valid last will and codicil of Hanorah Foley, deceased.

The record discloses that the petition of plaintiffs below, by proper averments, sought to set aside the will and codicil; that on the trial the defendants below, the plaintiffs in error here, offered in evidence the record of the probate court, showing that the will and codicil were admitted to probate; that in the trial evidence was offered as to both will and codicil; that the judgment entry was approved and signed by counsel on both sides, as the final judgment in the case in the common pleas court; the same being as follows:

"This day came the parties hereto by their respective counsel, and the jury having, on a former day at a former term, rendered a verdict for the defendant, finding that said paper writing purporting to be the original last will and testament and codicil of Hanorah Foley, and admitted to probate in said Probate Court of this county on the seventh day of October, 1926, is not the valid last will and testament and codicil of the said Hanorah Foley, deceased, and the defendants having filed their motion to set aside the verdict and for a new trial, and the same coming on now to be heard, after argument by counsel, the court on consideration thereof overruled said motion.

"It is therefore adjudged by the court that said paper writing produced in this case and offered in evidence, purporting to be the last will and testament and codicil thereto of Hanorah Foley, deceased, is not her valid last will and testament, to which ruling and judgment and the order and judgment overruling the motion to set aside the verdict and for a new trial the defendant excepts.

"It is further ordered and adjudged that the defendant pay the costs herein taxed at $ _________, to which order and judgment the defendant excepts."

It will be noted that only a general exception was taken to the general charge by the defendants and no requests to charge either before or after argument were made by counsel on either side.

The codicil in question was not dispositive in effect and only concerned the naming of an executor.

As to the definition of the terms "codicil" and "last will and testament," see 1 Alexander on Wills, pages 25 and 26:

"A codicil is a supplement to a will. Its derivation is from the Latin codicillus, a diminutive form of codex, thus representing a small will. It must be executed with the same solemnity as a will. It is added to the will after its execution, the purpose usually being to alter, enlarge or restrain the provisions of the will, or to explain, confirm and republish it. It does not supersede the will, as an after made will would do, but is a part of it, to be construed with it as one instrument. It is not a revocation of the former will except to the extent that its provisions are inconsistent with it, unless the intent to revoke be expressed.

"The term ``testament' is of Latin origin, from testamentum, or testatio mentis, or testor, according to varying authorities, but the conflict of opinion is immaterial since the ultimate meaning evolved is that in final testimony of a party, or his declaration of intention or will. Testamentum or testament is the term we find exclusively used in the old Civil Law and by its early writers. The expression ``will' is of English or Saxon origin and its use is confined to those countries where English jurisprudence prevails either directly or as the foundation of the law. The expression, however, most commonly employed to designate the instrument which makes a testamentary disposition of real and personal property is that of ``last will and testament.'"

An examination of the charge discloses the presiding judge many times used therein the following: "Document," "this paper writing," "this instrument," and "this document." And we are of the opinion that such terms, in law, include codicil by reference. We further find that under the evidence the jury had before it for consideration the will and codicil; and that counsel, in the trial, had both will and codicil in mind in the contest as shown by the pleading, the evidence, and the final journal entry. It does not require a very careful reading of the record under review to reach this conclusion.

No complaint is made as to the charge except that the court did not specifically call the attention of the jury to the codicil. Nevertheless, the evidence shows that the mental condition and testamentary capacity of Hanorah Foley was in no better condition at the time of making the codicil than at the date of the execution of the will. The undisputed evidence is that Hanorah Foley had been declining mentally and physically for years, and that her condition and disability were gradually becoming worse, and that she was in the same condition, if not worse, at the time of the execution of the codicil that she was in thirty days prior thereto when she made her will.

The question here raised is: In the face of the record before us, should this judgment be reversed because the trial court failed to use the word "codicil" in connection with the word "will" in the general charge to the jury, when counsel, now complaining, sat by and listened to the charge of the court and made no suggestion to the court with reference to same and made no request for further instruction as to the omission which they now urge as prejudicial error?

Our courts have repeatedly held that there is a duty on the part of counsel in the trial of a case, as well as on the part of the court, and they cannot remain silent and then take advantage of the omission of the court to charge, unless the charge as given would tend to mislead the jury. The following authorities are in point:

Columbus Railway Co. v. Ritter, 67 Ohio St. 53, 65 N.E. 613:

"Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal, unless it was called to the attention of the court, and further instructions requested and refused, provided the jury is not misled by the charge as given.

"A general exception to the charge of the court, as now permitted by Section 5298, Revised Statutes, is effectual only as to errors of law existing in the charge as given, and does not bring in review on error, an omission or failure to give further proper instructions."

State v. Schiller, 70 Ohio St. 1, 70 N.E. 505, 507:

"The only exception taken or noted by counsel for defendant, being a general exception to the charge as a whole. It is a familiar and very general rule of practice, applicable alike to criminal and civil causes, that mere partial non-direction or incomplete instruction, as to a particular matter or issue, does not of itself constitute reversible error, in the absence of a request for more specific and comprehensive instructions upon the particular point or issue involved."

State v. McCoy, 88 Ohio St. 447, 103 N.E. 136:

"A general exception to the charge of a trial court does not raise any question of error as to the omission of the court to give further correct instruction, but presents only questions of errors of law existing in the charge as given."

Also the following cases: Morgenroth v. Northern Ohio Traction Light Co., 18 C.C. (N.S.), 306, 29 C.D., 510; CincinnatiTraction Co. v. Lied, 9 Ohio App. 156; Scott v. State, 107 Ohio St. 475, 141 N.E. 19; Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 146 N.E. 805; State v. Driscoll, 106 Ohio St. 33,138 N.E. 376; and Beeler v. Ponting, 116 Ohio St. 434,156 N.E. 599.

Is the verdict against the manifest weight of the evidence?

We answer this in the negative. From a careful reading of the evidence, as contained in the bill of exceptions, we reach the conclusion that the jury was warranted in returning a verdict for the defendants in error and against the plaintiffs in error.

See the following cases as to when a reversal of a judgment may be had for the reason that it is against the manifest weight of the evidence: Breese v. State, 12 Ohio St. 146, 80 Am. Dec., 340; Dean v. King, Pennock King, 22 Ohio St. 118; Scott v.Perlee, 39 Ohio St. 63, 48 Am. Rep., 421; Scaccuto v. State,118 Ohio St. 397, 404, 161 N.E. 211.

We have reviewed this case with much care and at no little time and labor. The record presents a lawsuit that was warmly contested from start to finish. The trial lasted some days, if the length of the record means anything. We are convinced — speaking from the record — that a fair and impartial trial was had; that the verdict and judgment are responsive to the proven facts; that no errors of a prejudicial nature have intervened; and that substantial justice has been done in the premises to the litigants.

It necessarily follows that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

LEMERT, J., concurs.