It is with regret that I find myself unable to agree with the majority opinion in its entirety.
It seems to me that the court's failure to give to the jury special request No. 7 constitutes prejudicial error. Before making further comments on special request No. 7, I desire to make some observations relative to special requests Nos. 2, 3, 8 and 9, all refused and properly so, as is held in the majority opinion.
The trial court declined to give special requests Nos. 2 and 3 for the reason that such requests failed to incorporate and give effect to the presumption of validity that arises from the probate of the will.
"Instructions by the trial court in a will contest must clearly define the rule that the evidence introduced by contestant, in order that he may prevail, must be a preponderance, outweighing both the evidence procured by the contestee and the presumption of validity that arises from probate of the will." West v. Lucas,supra. See, also, Hall, Exrx., v. Hall, supra; Van Demark v.Tompkins, Exr., supra; Kennedy, Exr., v. Walcutt, supra.
Section 12083, General Code, contains the following:
"On the trial of such issue, the order of probate shall beprima facie evidence of the due attestation, execution, and validity of the will or codicil."
The Supreme Court of Ohio has formulated the above-quoted rule by reason of the provisions of the above section.
If we were determining an original question, I could very readily agree with the contention of counsel for the contestants that the rule should be the usual and ordinary rule of preponderance of evidence. The legislative enactment providing that the probate of the will should be prima facie evidence, was first adopted in 1852. (50 Ohio Laws, 300, Section 22.) This statutory law has continued without change in substance *Page 210 up to the present time. If I understand it, the purpose of this enactment was to change the burden of proof from the proponents to the contestants. Banning v. Banning, 12 Ohio St. 437; Brown v. Griffiths, 11 Ohio St." 329; Mears v. Mears, 15 Ohio St. 90.
It was a rule of the civil law that the burden of proof was upon the proponents. This was the general rule in many jurisdictions throughout the United States and it still remains the rule in some of the states.
In the earlier days in many instances a will contest case was in reality a review of the order of probate. Later was developed the theory of chancery appeal through which the contest would be heard de novo; and then followed the separate action. If I am correct in the above analysis as to the reason and purpose of the Legislature in enacting the prima facie rule, then it is hard to understand why the ordinary rule of burden of proof would not meet the language and the spirit of the statute.
However, this is not an original question and under the rule ofstare decisis we must follow the pronouncement of the Supreme Court of Ohio. It is my hope that at some future time the court of last resort in our state will abandon its earlier announcement as to what constitutes burden of proof in a will contest case.
I am also in accord with the majority opinion that the trial court was correct in refusing to give special instructions Nos. 8 and 9.
In my judgment both instructions were correct, except that therein the burden of proof was shifted to the proponents of the will.
The rule in Ohio is well defined that the burden of proof never shifts. 17 Ohio Jurisprudence, 138 et seq., Sections 110, 112, 114, 115; 39 Ohio Jurisprudence, 976, Section 282; Kennedy, Exr., v. Walcutt, supra, paragraph six of the syllabus.
The rule is well stated in 20 American Jurisprudence, 1102, Section 1251: *Page 211
"When the party having the burden of proof establishes a primafacie case, he will prevail, in the absence of proof to the contrary offered on the part of his opponent. * * * It is not necessary that this prima facie case be met by a preponderance of the evidence or by evidence of greater weight. It is sufficient if the defendant's evidence equalizes the weight of the plaintiff's evidence, or, in other words, puts the case in equipoise."
Special request No. 7 is not subject to the objections found in special requests Nos. 2, 3, 8 and 9. This request reads as follows:
"In such a case as the present, in which the person who writes the will, is the attorney for the testatrix and a stranger to the blood of the testatrix and takes a large interest under it, there is a presumption of undue influence. Such presumption of undue influence is an inference of fact which the jury may draw but is not conclusive nor a presumption of law."
In my judgment the above correctly states the law and the court's failure to give it before argument constitutes prejudicial error.
Counsel make the observation that this question has never been decided by any court in Ohio. Research for decisions in other jurisdictions discloses a wealth of authority supporting contestants' position.
In 66 A.L.R., 244, under subheading "Benefits to Drawer of Will," we find the following in the text:
"Where one who draws a will is benefited thereby, generally a presumption is raised that the will was procured by undue influence; and this is especially so when the one drawing the will stands in a confidential relation to the testator."
Under the text are cited cases from twenty-seven states. We have examined those cases and find a most interesting, direct and positive announcement supporting the text. In some instances the cases are not in point, but we do not find any that directly challenge *Page 212 the principle. In some there is an apparent variance, but an examination of the facts will definitely distinguish them.
In 28 Ruling Case Law, 146, Section 99, we find the following:
"When the person who drafts a will or participates in procuring its provisions from the testator also occupies a relation of special confidence toward him, and would not be a beneficiary in the absence of the will, and is specially benefited by its terms, the general rule is that a presumption of undue influence will arise and the burden of proof will be on him to show that the will was executed freely and without his influence."
In 68 Corpus Juris, 759, Section 451, there appears the following:
"However, it is the general rule in practically all jurisdictions that undue influence is presumed and the burden of proof shifted so as to require the beneficiary to produce evidence which at least balances that of the contestant, when, in addition to the confidential relation, there exist suspicious circumstances, such as the fact that the beneficiary took part in the preparation or procuring of the will, or actually drafted it or assisted in its execution, or that the testator was weak-minded or in frail health and particularly susceptible to influence, or that the provisions of the will are unnatural and unjust. Before there can be room for application of any of these rules it is necessary that the relation between the parties be a fiduciary or confidential one, and that the person occupying such a relation toward the testator take a beneficial interest under the will."
The rule seems to be universal, and, being founded on sound reason, I can see no reason why it should not be followed in Ohio.
As heretofore stated, the courts of Ohio have taken a pronounced stand in their pronouncements that the *Page 213 burden of proof never shifts, and in this particular the rule in many other jurisdictions varies.
This difference need not bother us since we can very readily give application to the equipoise rule rather than the shifting of the burden of proof. This was exactly the situation with which the court was confronted in the case of Kennedy, Exr., v.Walcutt, supra. A careful reading of this case will prove both interesting and profitable. It definitely clarifies the procedure to be followed where the evidence produces presumptions. Under paragraph six of the syllabus the statement is positively made that the burden of proof never shifts. In the reported case, which was a will contest, the major issue was the mental capacity of the testator.
In the course of the trial, contestants introduced testimony that the testator prior to the time of the making of the will had been adjudged insane and was under guardianship, having previously been committed to the Lima State Hospital.
Paragraph four of the syllabus reads as follows:
"4. While every person is presumed to be of sound mind, yet when a person has been declared insane by a court of competent jurisdiction and is under guardianship, the presumption of sanity is not only removed but a presumption of insanity arises. Where a will of such a person, made after such adjudication, having been admitted to probate, becomes the subject of a will contest, the burden of proof by statute being cast upon the contestants of the will, the presumption of continuance of such insanity was a rebuttable one and would be removed when sufficient evidence had been introduced to meet, extinguish, rebut, countervail or overcome such presumption arising from the adjudication of insanity."
Paragraph five of the syllabus is also in point and reads as follows:
"5. The degree of proof necessary to remove a presumption is not to be confused with the degree necessary *Page 214 to sustain the burden of proof. When a party is not required to sustain the burden of proof upon some particular issue, a rebuttable presumption arising out of such issue maybe overcome by evidence which counterbalances the evidence to sustain the presumption; however, when such party is required to assume the burden of proof upon an issue, any rebuttable presumption arising therefrom must be removed by the same degree of proof necessary to sustain the issue."
Giving application of the above principles to the instant case, it may properly be said that the evidence discloses that the scrivener was in the status of confidential relation with the testatrix; that he received a substantial bequest in the will; that the same was not read to the testatrix in the presence of the witnesses. This would raise a presumption of undue influence, which presumption would not shift the burden of proof, but would require the proponents of the will to present evidence to countervail such presumption. As is stated in syllabus 5 of the reported case, the duty would devolve upon the proponents of the will to meet this rebuttable presumption with evidence which would counterbalance and bring the issue into equipoise.
The trial court in refusing to give special request No. 7 found objection in that the language first required the court to say that the presumption of undue influence arose as a matter of law, and later define it as an inference of fact, which were inconsistent statements.
It is true that the courts of Ohio, as well as those of other jurisdictions, have had difficulty in determining and distinguishing between presumptions of law, presumptions of fact, rebuttable presumptions and inferences. The terms are frequently used interchangeably. Ensel v. Lumber Ins. Co. of New York,supra, at 282.
In my judgment the proper designation to be given to the presumption in the instant case would be "rebuttable *Page 215 presumption." In other words, just as in the Kennedy case, supra, the evidence of confidential relationship of the scrivener and his receiving a substantial bequest, would raise a presumption of undue influence, but it would be a rebuttable presumption and the evidence of proponents might counterbalance such a presumption. I can see no objections to the language of special request No. 7 when we give it the same application as the announced principle in the Kennedy case, supra. It is true that the first four lines of the request standing alone might be indefinite in their meaning; and the query arises as to whether it is a presumption of law, a presumption of fact or a rebuttable presumption. However, the remainder of the charge clarifies this matter and when it says that such presumption is an inference of fact which the jury may draw, but is not conclusive or a presumption of law, it definitely presents the rule of rebuttable presumption.
Had this charge been given, it might not have affected the final determination of the case by the jury, but the law is well established that where the original request to charge before argument correctly states the law, it must be given, and the failure to give constitutes prejudicial error. I hasten to say that in this dissent I do not for a moment intend to impute to the scrivener, Mr. McLean, any improper conduct. The question involved is very important and requires a correct determination as a controlling rule of law for this and future cases.
Personally I do not think that a person who receives a substantial bequest under a will should ever act as a scrivener. More reason for this rule is presented where the scrivener and the testatrix stand in confidential relations, and where the will was not read to the testatrix or by her in the presence of the attending witnesses. The reason for such rule is apparent.
It is my judgment that this court should hold that the trial court was in error in refusing to give to the *Page 216 jury before argument special request No. 7, and that by reason thereof the verdict and judgment should be reversed and the cause remanded for new trial.