Huff v. Zeier

Mary J. Huff and George Zeier, Jr., brought this action originally in the Franklin Common Pleas against John H. Zeier, John H. Zeier, Executor, Rev. Bernard J. Hanna and Anna Zeier to set aside a probated will of George Zeier deceased, on the ground that a subsequent will had bean executed, but was lost.

The court charged the jury that a preponderance of evidence would justify a verdict setting aside the will. This judgment was reversed by the Court of Appeals on the .ground that the Cuort should have charged the jury that the evidence of execution and contents of the will must be clear, strong, positive, free from bias and convincing beyond a reasonable doubt

At the second trial the court charged in accordance with the finding of the Court of Appeals but weni further and used the expression “Free from doubt” and thereupon a verdict was returned in favor of the defendants. The Court of Appeals affirmed the Common Pleas.

The plaintiff in error here contends:

1. That the use of the expression “Free from doubt” was prejudicial error because it required the subsequent will to be proved as an absolute certainty.

2. That the fact that the court charged correctly otherwise will not raise a presumption that the jury followed the correct rule to the exclusion of the incorrect will.