Laver v. Kreiter. Philip J. Laver. It could not pass to Edith Laver or Harold A. Laver, as they were not heirs at law of the testator. It could only pass to them by the terms of the will itself. It did not so pass because the will fixes the death of the survivor of testator's two sons as the date when the fee simple title should pass, and then not to Edith and Harold A. Laver, individually, but to the heirs of the bodies of George M. and Philip J. Laver, as a class. Edith and Harold A. meet the requirements of the will as to the class that should take said estate at the date fixed, viz., at the death of George M. Laver, which occurred on November 5, 1915. Harold's deed to Martin Kreiter was made December 2, 1912, nearly three years before any title whatever accrued to him under the will of Philip Laver. We are of the opinion that the deed of Harold A. Laver to the defendant Martin Kreiter did not convey to the grantee named in said deed any right or title to the real estate in controversy. The estates created by the will of Philip Laver are in legal effect entailed estates, giving to the first takers an estate for life only, and to the issue of the first takers, or to the heirs of their bodies, an estate in fee simple. A rule of construction for such cases is laid down in the cases of Dungan v. Kline, 81 Ohio St. 371 [90 N. E. 938]; Dart v. Dart, 7 Conn. 250, and Carter v. Grossnickle, 22 Dec. 680 (11 N. S. 465), affirmed without opinion, 88 Ohio St. 577. Under these authorities Harold A. Laver had no interest in said lands that he could alienate. Neither is anything pleaded or shown by the testimony that would operate as an estoppel against him. Kreiter having paid certain money for the benefit of Harold A. Laver, he ought, in equity, to have the same repaid to him, and this would be so ordered. The same decree may be entered in this court as was entered in the court of common pleas. Judgment rendered in favor of defendant Harold A. Laver and against all other defendants, excepting as to the money ordered repaid to Martin Kreiter. Houck and Shields, JJ., concur. Wood County Appeals. EVIDENCE-WILLS. [Wood (6th) Court of Appeals, November 13, 1914.] Kinkade, Richards and Chittenden, JJ. WILLIAM H. ROGERS V. ELIZABETH B. MONROE ET AL. 1. Hypothetical Question Based on Assumed Fact Disproved by Evidence Properly Excluded. It is not prejudicial error to sustain an objection to a hypothetical question which is based on an assumed fact that is supported by some evidence, but is clearly disproved by the manifest weight of the evidence. 2. Nonexpert Testimony as to Mental Capacity of Testator Limited In the trial of an action to contest the validity of a will the opinion of a nonexpert witness as to the mental capacity of the testator must be confined to a time when such testator is under the observation of the witness. 3. Photograph of Testator at Time of Execution of Will Admissible. A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set the will aside, but it is not prejudicial error to sustain an objection to the introduction of such a photograph which was taken eight or nine years prior to the execution of the will or codicil which is under attack. [Syllabus by the court.] ERROR. Benjamin F. James, for plaintiff in error. RICHARDS, J. This action was brought for the purpose of contesting the validity of a codicil to the will of William Rogers. The original will was executed in 1899, and the codicil on October 20, 1911. By the terms of his original will his property was left to his wife during the term of her life, and at her decease it was to go to the children and grandchildren of the testator. In the codicil he ratifies and confirms the provisions of the original will and then adds a bequest in favor of Elizabeth B. Monroe of $8 per week during the time that she should care for him and his wife. The codicil also provides that interest should be computed at five per cent. on the amounts to become due her for Rogers v. Monroe. services and which were given to her by the terms of the codicil. William Rogers was at the time of the execution of this codicil of about the age of ninety-one years, and it is contended that he did not have sufficient testamentary capacity to execute the instrument and that the same was the product of undue influence. The testator was born in England and spoke the English language with a decided brogue. He was the owner of forty-six acres of land which he had purchased many years before at a low price, but which was worth at the time of his decease approximately $8,000. In the year 1909 the dwellinghouse situate on this tract of land was destroyed by fire, and this loss seems to have more or less affected his condition. In the succeeding year he suffered a slight stroke of paralysis which affected his right arm and side and to a limited extent interfered with his speech. Some witnesses testify to a difficulty in understanding what he said, but it appears that because of his brogue that difficulty had always existed to a greater or less extent. He seems to have suffered his full share of afflictions, having during the last few years of his life a cancerous growth on his face and a toe affected with gangrene. It appears from the evidence that he subscribed regularly to a daily paper, that he took a church paper, and that he frequently read from the Bible, but during the last few years of his life apparently he did not do much reading himself, but had others read to him. It is clear from the evidence that he was naturally a man who was very taciturn all his life, and that this condition perhaps increased with his age; at any rate he could not be charged with the garrulity which is sometimes witnessed in aged people. With his increasing years, feebleness, probably both of mind and body, came on gradually. In 1899 he was married for the third time and to a woman who still survives and is of the age of about ninety-one years. She had been theretofore married and had a daughter named Elizabeth B. Monroe of the age of forty-seven years. This daughter is a defendant in this action and came to care for her mother and stepfather in June of the year 1911. Some question having been raised by certain of the children of William Rogers, he asked Mrs. Monroe to ac Wood County Appeals. company him to Bowling Green, which she did, on October 20th, 1911, and he there executed the codicil in question and on the same day entered into a written contract with her providing specifically for the terms of her employment, the same being in accordance with the provisions of the codicil. The evidence leaves no room for doubt but that Elizabeth furnished to the aged people excellent care, and that they were clearly in a condition requiring that kind of care is apparent. She had had much training as a nurse and was able to do whatever household work was necessary about the house, and in addition to care for the cancer with which he was afflicted and to dress the toe which was affected with gangrene. William Rogers died on August 18th, 1913, of a final stroke of paralysis and a gradual weakening of the powers of his body and mind incident to old age, and called by some of the witnesses senile dementia. The jury on the trial of the case returned a verdict sustaining the codicil. We have carefully read the evidence contained in this reccrd, and from such examination we are unanimously of the opinion that the verdict returned by the jury is sustained by sufficient evidence. Many objections and exceptions were taken during the trial of the case. During the examination of Dr. C. M. Deibert, who was the family physician of the deceased, he was asked his opinion as to the capacity of the testator to make a rational selection among the objects of his bounty. To this question an objection was made by counsel for the defendants, and that objection was sustained, and the plaintiff excepted to the ruling of the court; but no offer was made to prove what the witness would answer in response to the question, and with out such offer prejudicial error is not made apparent. A hypothetical question was submitted to Dr. Powell and the identical question to Dr. Stove. and these witnesses were not allowed to answer as experts the question so submitted. The question is very lengthy and undertakes to review all the facts disclosed in the case and concludes with an inquiry as to the capacity of the testator to comprehend the relations which he held to those who had claims on him and to keep them in mind long enough to form a rational judgment in regard to them, and Rogers v. Monroe. This question as to make a rational selection among them. sumes as a fact that for a period of five years or more before the testator's death he had performed no business. In view of the testimony of Ross Rogers, a son of the plaintiff, and Ophelia H. Rogers, the wife of the plaintiff, who testified that they did not know of his doing any business and were so situated as to probably have knowledge if he had performed any business, we think counsel were justified in assuming as a fact that the testator had not performed any business. Nevertheless, when the evidence was all in, it clearly appeared that the testator did attend to more or less business during the last five years of his life. Without undertaking to restate all the evidence on this subject, it appears from the bill of exceptions that in the year 1909 he made a written contract with a daughter, Mrs. Tiplady, for the support of himself and wife. In October or November of 1909 he borrowed $500, and to secure the same executed a note and mortgage upon his property. In February, 1910, he executed a written lease of his farm to the plaintiff, and in the same year he signed as bail for the plaintiff. During most of the period of time covered by the hypothetical question, he sold more or less of his share of the crops raised on his land and collected the pay therefor. Most of these facts appear from the testimony of witnesses called by the plaintiff himself, and the fact that the testator transacted the business above mentioned is not seriously disputed. Indeed, the only evidence to the contrary is that of the two witnesses mentioned, who testify, that they do not know of his doing any business. It is clearly the law that jurors should disregard the answer of witnesses to hypothetical questions in case they find the hypothesis not in accordance with the facts. Under such circumstances the jurors must be told that the opinion is of no value. So that, assuming that the question under consideration was in such form that it should have been allowed to be answered, yet it would have been the duty of the trial judge after the evidence was all in, and it apepared that the assumed fact was clearly and manifestly not sustained by the evidence, 36 O. C. C. Vol. 39. |