We are agreed that if there is any prejudicial error in this record it is in the failure of the trial judge to charge before argument plaintiffs' special request No. 7.
There is no doubt that the principle of law announced in the dissenting opinion is well established in many jurisdictions but the difficulty in the special charge under consideration is to determine if, under our prima facie rule required by Section 12083, General Code, the instruction was in proper form to go to the jury. I am of opinion that it was not.
As I understand Judge Barnes' opinion it is to effect that the principle announced in Van Demark v. Tompkins, Exr., supra, and earlier cases goes too far in construing Section 12083, General Code, and that it was intended only to put the burden of proof upon the contestant in a suit to contest a will. I cannot see how the Supreme Court could have promulgated any other rule than it did in view of the terms of the statute. In any event it is now incumbent upon the contestant not only to produce a preponderance of the evidence but in addition thereto enough evidence to overcome the prima facie proof of the due attestation, execution and validity of the will made by the offering of the order of probate.
If we did not have Section 12083, General Code, and if we did not have a determination of the Supreme Court as to the burden thereby devolving upon a contestant with a qualification to which we hereafter refer, special charge No. 7 would be proper and should have been given.
As the trial judge observed and Judge Geiger indicates *Page 208 in his opinion, the first sentence of the charge is a definite statement that a presumption of undue influence arises under the admitted facts in the case. It is true that thereafter this positive statement is modified to the effect that the presumption is but an inference of fact which the jury may draw but is not conclusive. Of course, it is probable that the jury would not make distinction between presumption and inference as the courts have had much trouble in agreeing upon the distinction between the terms. So that the instruction should set forth fully the effect of the inference arising. The charge, in my opinion, is incomplete in that the jury may properly have believed that the inference of undue influence arising from the admitted facts was sufficient to support a verdict setting aside the will. The inference of fact which resulted because of the facts included in the instruction, if it be treated as an inference only, is sufficient only to meet and equal the prima facie case made by the introduction of the probate of the will. This is not enough to support a verdict for the plaintiffs.
The factual inference which the special charge sets forth is one that the jury could and would normally indulge. The effect of the proof of the facts, from which the inference arises, appearing in the special instruction, could, by the jury, have been the basis for a finding of undue influence and of a verdict for plaintiff, if, in its judgment, that was its probative effect.
On the other hand the inference may only have been sufficient to equal the prima facie case made by the offering of the probate of the will, or, taking into consideration all the other facts and circumstances appearing, may have been explained to the satisfaction of the jury. The special charge in its most favorable aspect left out the consideration of any element of proof on the matter of undue influence save only that inference which arose from the undisputed facts. The part omitted was essential to a correct statement of the law. *Page 209