My understanding of the law applicable in this case is at variance with the majority opinion; and my judgment prompts me to *Page 304 assert what, to my notion, are the reasons why this cause should be reversed.
The defendants in error contest the validity of the last will and testament of Hanorah Foley, which bears date of February 20, 1926, and also the codicil thereto, which bears date of March 26, 1926; they recognize that this is a special statutory proceeding, filed under favor of Section 12082 of the General Code. The plaintiffs in error, not being required to answer, made no answer; and the trial court, no doubt at the instance of the attorneys for the defendants in error, made up the issue, or attempted to, by an order on its journal, which omitted therefrom the issue and question of the validity of the codicil. It appears to me that the defendants in error should have been most active in seeing that the issues were properly made up. The burden of proof and the presumptions were against them. It was not the duty of plaintiffs in error to make the case of the defendants in error, and I see no carelessness of the attorneys for plaintiffs in error in failing to suggest to the trial court the proper issues in this proceeding, even if they then had knowledge of the issue as made by the trial court, which knowledge I doubt.
Two important facts are disclosed on pages 1 and 2 of the record. The court, in its preliminary statement to the jury, is well advised that this action was a special statutory proceeding, and that a codicil to the will of the testatrix was an issue.
"Court: What date is the codicil?"
"Mr. Workman: It is dated about a month after; it bears date of the twenty-sixth of March, 1926."
An examination of the court's charge discloses that the jury was instructed correctly on all the *Page 305 issues ordinarily arising in a suit to contest a will, but the charge is silent as to the codicil, and the issues therein and thereby raised were not submitted to the jury. The charge discloses that the following was stated to the jury:
"I might add, so that the jury will clearly understand, upon the question of undue influence, if there was any attempt upon the part of any one to influence this testatrix at the time of the execution of this will, or at any reasonable, prior time, before it could be considered as undue influence within the definition of the law which would invalidate a will, it must have been operative upon the mind of the testatrix at the time she attempted to execute the will, so that it would have a controlling influence upon her in the execution of her will and the disposition of her property, at that exact time; not at some other time."
A general exception was noted to this charge, and no request was made upon the trial court to correct any omission therefrom, or for further instruction.
The controlling questions in this case are: Did the trial court err in failing to charge all the issues of the case as prescribed by the statute; or was the jury wrongfully charged as to the law applicable; and is the question properly saved by a general exception to the charge?
I am well advised that Section 11561 of the General Code provides that general exceptions to a charge of the court only apply to all errors of law which exist in such charge that are material and prejudicial to the substantial rights of the party excepting, and there is a long line of sustaining authorities, but to my view there is an exception to this *Page 306 rule, well recognized in Telinde v. Ohio Traction Co., 109 Ohio St. 125,129, 141 N.E. 673, 674, wherein the court said:
"By the provisions of Section 11447, construed and defined by the Lockwood case [72 Ohio St. 586, 74 N.E. 1071], a very great responsibility still rests with the court. As between the responsibility resting upon the court, on the one hand, and that resting upon counsel, on the other, it is apparent that cases will constantly arise for which no definite rule can be established. It is not intended in this case to modify or in the least detract from any statements in any of the reported cases dealing with the relative duties of court and counsel. The problem is not always solved, however, by merely determining whether the blame rests upon the court or upon counsel. It may be that both are at fault, and when in such case error intervenes which is material and prejudicial to the substantial rights of the party excepting, what course should be pursued by a reviewing court? Substantial justice to the litigant should be the highest aim of the courts, otherwise the Bill of Rights becomes only a form. In spite of the rules already laid down, and those which may hereafter be declared, it is manifest that there will yet remain a twilight zone in which cases will appear where the courts will be compelled to determine upon the particular issues of those cases, and the evidence adduced in support thereof, whether the instructions amount to a charge complying with Section 11447, and, if not, whether it was the duty of counsel to make specific objections and requests for further instructions."
It is my opinion that this reasoning has special *Page 307 application in a suit to construe a will and codicil, inasmuch as the same is a special statutory proceeding, the issues being specifically defined by Section 12082 of the General Code as follows:
"An issue must be made up, either by pleadings or an order on the journal, whether or not the writing produced is the last will or codicil of the testator, which shall be tried by a jury. The verdict shall be conclusive, unless a new trial be granted, or the judgment is reversed or vacated."
It will be noted that this section is found in Chapter 8, of Division VII, Title IV, of part third of the General Code, which is entitled, "To contest will." It has been strongly urged that the term "will" includes "codicil" and that there is no error in the charge by reason of the fact that Section 10502, General Code, provides:
"In this title the term `will' includes codicils."
It will be further noted that this section of the Code is included in Chapter 2, of Title III, and applies to execution, record, construction, and wills generally.
The Legislature has seen fit to embody the rules governing a will contest in a separate chapter, and to specifically define the issue; and to adopt the view of the defendants in error would place a construction upon Section 10502 which would nullify and annul the plain provision of Section 12082 and limit its application, which the Legislature did not intend. These sections are not in pari materia, and to so hold would violate the rule of statutory construction announced in Columbus Street Ry. Co. v.Pace, 68 Ohio St. 200, 67 N.E. 490.
It is therefore my opinion that Section 10502 can *Page 308 have no application in a suit to contest a will and codicil, and does not relieve the trial court of his duty to charge the issues. To my notion, the provisions of Section 12082, General Code, are mandatory, which the parties, by their pleadings, or by agreement, cannot change, or the court modify or disregard.
The case of Dew v. Reid, 52 Ohio St. 519, 40 N.E. 718, appeals to me strongly, wherein the court held:
"1. While the appropriate remedy for the contest of a will is now by civil action, the rules of pleading and procedure under the Code, when inconsistent with special statutory provisions relating to such contests, are inapplicable, and the action must be conducted in conformity with such special provisions.
"2. The issue to be made up and tried in such actions, having been prescribed by statute, cannot be varied or restricted by averments in the pleadings, but must be the same, whether made up by the pleadings, or by an order on the journal of the court, viz: `whether the writing produced is the last will or codicil of the testator, or not.'"
The reasoning advanced in Trull v. Patrick, Exrx., 22 N.P. (N.S.), 385, 31 O.D., N.P., 319, is apropos.
The third proposition of the syllabus holds:
"The proper issue to be submitted to the jury is whether or not the writing produced is the valid last will and codicils of the decedent and the verdict of the jury should respond to this issue in reference to the will and to each of its several republishing codicils, whether such codicils are mentioned in the petition or not." *Page 309
The court in concluding its opinion in that case says:
"It would be impossible to submit the issue of the validity of the will to the jury without submitting to it the issue as to the validity of its several codicils, each of which republished the will as of its date."
This last assertion of the trial court in that instance, I believe, is sound law, and must lead me to the conclusion that the trial court in the instant case committed error of a highly prejudicial nature. It was not only an error of omission, but one of commission, and was saved by a general exception to the charge.
A great number of cases and authorities have been examined, and I find it to be universally held that wherein the codicil, as in this instance, rectifies and confirms the will, it republishes such will as of the date of the codicil, and makes it speak as of such time. The testatrix might not have possessed testamentary capacity, or may have been under restraint when the will was executed, but it does not follow that such condition prevailed when the codicil was executed. It is not the province of the court to so determine, but for the jury to find from the facts, under proper instruction, which duty in this instance the court by its charge took from the jury. I am mindful that it is not the province of a reviewing court to determine the credibility of witnesses, and of the rule that the testimony of attesting witnesses, when not beneficiaries, or otherwise interested, is of greater weight than that of the ordinary witness, and that a testator may have a lucid interval, and that two of the subscribing witnesses to the will and *Page 310 codicil are reputable officers of the court; and I am reluctant to believe that they were parties to any wrongdoing, and the record discloses that three members of the jury did not approve of the verdict.
It is therefore my view that there was error in the issue as made up, and error in the charge, not only error of omission, but also of commission; that the verdict was not responsive to the proper issue; that the judgment is not in accord with the verdict of the jury; that there was error in the court's ruling on the motion for a new trial; that such error was material and prejudicial to the complaining party; that a fair and impartial trial was not had; that substantial justice has not been done; and that this cause should have been reversed.