This case is a will contest case an dit was claimed that the paper writing probated was not the last will and testimony of Mrs. Caroline McCall, the alleged testatrix. The case was tried to .a jury in the Montgomery Common Pleas, and nine members of the jury signed a verdict setting the will aside. Error was prosecuted by the defendants and the Court of Appeals held:
1. In the introduction of evidence by the contestants, it does not appear that the competency of Mrs. McCall to make a will was *260challenged. The only substantial claim was that Mrs. McCall was ill at the time she executed the alleged will and she was tm-duly influenced to make said will by her sisters who are beneficiaries therein.
Attorneys — William A. Swaney for Schultz et; D. H. Wysong for Kingry; Harry M. Wolfe for Church; all of Dayton.2. Testimony shows that neither of the sisters were in the room at the time the will was drawn up, and that the scrivener was called in at the request of the testatrix.
3. There is no showing of any attempt on part of the sisters to influence the testatrix in respect to the will. The only possible inference of undue influence would arise from the circumstances that the sisters were principally benefitted by the will, and that they were in a position, due to illness of the testatrix, to exercise influence over her.
4. Had the testatrix been shown to be mentally weak and susceptible to influence, there might have been some foundation for the claim of undue influence; but in the absence of any such testimony, the inference of undue influence would not be sufficient to warrant the verdict setting aside the will.
Judgment reversed and cause remanded.
(Ferneding, Kunkle & Allread, JJ., concur.)