Anthony v. Abrams

The plaintiffs appealed from the judgment of the Court of Common Pleas of Hamilton county; such appeal being designated an appeal upon questions of law and fact. Upon oral argument of the case, it was conceded by plaintiffs that the appeal must be confined to one upon questions of law only.

A verdict for the defendant was instructed by the court at the conclusion of the plaintiffs' evidence.

After an examination of the bill of exceptions, it is apparent that the trial court was fully justified in its conclusions that there was no evidence either that the testator at the time he executed his will lacked mental capacity to make a will, or that at the time he executed the will he was under such undue influence that the testament did not represent his voluntary act in the disposition of his property.

It is not sufficient that he was influenced either by affection or dislike. The adverse influence alleged to exist must have been such that at the time he executed the instrument he was under such restraint that his testamentary disposition was not in accordance with his own independent wishes and judgment. Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec., 620; Lovelady v.Rhinelander, Exrx., 60 Ohio App. 493, 21 N.E.2d 1001;Lovelady v. Rheinlander, 66 Ohio App. 409, 34 N.E.2d 788.

The evidence does disclose that the testator at times showed an intense dislike toward the mother of the plaintiffs, and that there was ill feeling between the daughter of testator and the mother of plaintiffs. The evidence as to mental incapacity is limited to developing that the testator at the time of the death of his son and wife was sorely distraught. Such evidence would not justify the trial court in submitting the case to the jury in the presence of the presumptions surrounding the will after its probate.

The judgment is affirmed.

Judgment affirmed.

MATTHEWS, P.J., and HAMILTON, J., concur.