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Licking County Appeals.
by testimony, that the same was not his will; that he was without capacity to make a will at the time when said purported will was executed, and that, by reason of undue influence on the part of the defendants, such paper-writing was not his will; that they being named as secondary devisees of said real estate in the will of Martha Goff in the event that said Haas did not dispose of the same, they became the owners of said real estate upon his death; and they seek a decree of the court setting aside said will.
Their right to offer testimony on the trial of said cause was objected to on the part of the various devisees named in the will of said Ensley Finney Flaas, on the ground that these secondary devisees, now plaintiffs in error, had no interest in the estate of the said Ensley Finney Haas, deceased, and that the devise over, in the second itein of the will of Martha Goff, was void; that they were strangers to his estate, and without authority to contest the validity of his will.
Their right to maintain said action depends upon the construction to be given to the second item of the will of said Martha Goff. There is no dispute among counsel or claim that the second item of the will of Martha Goff does not give an absolute estate in fee simple to the land described in said item to said Ensley Finney Haas; and it is not claimed but that, by the terms of said will, he had full power of disposition and could sell and convey, or couid devise by last will and testament, the land so devised to him; and only in the event that he failed to exercise his power to convey the deed or by will, could the plaintiff in error become seized of any interest in said lands.
A large number of authorities have been cited as to the proper construction to be given to this item of the will of Martha Goft. If plaintiffs have any interest whatever under said will, they were entitled, by reason of such interest, to contest the validity of the will of said Ensley Finney Haas and to have the same set aside in case a proper showing for that purpose had been made. If they do not take any interest under the will of Martha Goff, then the action of the court below, in refusing to hear testimony offered by them, was correct.
Robraham v. Gregg.
Upon an examination of all of the authorities cited by counsel for both plaintiffs in error and defendants in error, the court has arrived at the conclusion that the plaintiffs in error have no interest in saià lands derived through the will of the said Martha Goff, deceased; that the title to said lands passed by said will absolutely and in fee simple to the said Ensley Finney Haas and that the devise over, in the event that he died without having disposed of said real estate by deed or will, is void.
It is said to be a general rule that, when an estate is given to a person generally, with a power of disposition, it carries with it the fee; and the only exception to the rule is when the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposition. There can be no question but that the estate conveyed by the second item of the will of Martha Goff to the said Ensley Finney Haas was an absolute estate in fee simple, with full power of disposition; and that the limitation over, in case he did not dispose of it by will or otherwise in his lifetime, is void. Finlay Brewing Co. v. Dick, 13 Dec. 581 (1 N. S. 592), the syllabus of which case is : "If real estate is devised to A generally, without any qualification or condition, but with a proviso that in case of his death without will, the property shall go to B, the limitation over is void, and A takes the entire estate in fee simple, unaffected by the proviso." This case was affirmed by the circuit court of Lucas county, without report.
We think this rule of law is controlling in the case at bar; that the provision in the will of the said Martha Goff, deceased, under which the plaintiffs in error claim title, is void and of no effect; and that because said plaintiffs in error have no interest or title in and to the estate of the said Ensley Finney Haas, except under this void provision, they are without right or authority to contest his will. The persons who are authorized by statute to maintain a contest of the will of any deceased person are named and specified in Sec. 12079 G. C. The Supreme Court, in construing Secs. 5858 and 5859 R. S. say:
10 O. C. C. Vol. 36
Licking County Appeals.
“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator's estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is 'a person interested,'”' and only "a person interested” can maintain a suit to set aside a will. Bloor v. Platt, 78 Ohio St. 46 (84 N. E. Rep. 604; 14 Ann. Cas. 332).
It follows that the judgment of the court of common pleas, in refusing to permit plaintiffs in error to introduce testimony because of their want of interest in the estate of the said decedent, was correct, and that the judgment of said court should be affirmed.
Shields, J., concurs.
[Stark (5th) Circuit Court, February Term, 1912.]
Voorhees, Powell and Shields, JJ.
JOSEPH ANDY V. STATE OF Ohio.
1. Near Relative of State Witness May Act as Interpreter in Trial for Homicide. It is not error in a trial for homicide to permit a near relative
of one of the witnesses for the state to act as interpreter, where there is nothing tending to show that the said interpreter was in any way biased or prejudiced or interested in
the outcome of the trial. 2. Mutilated Heart of Person Killed Exhibited in Homicide Trial to Show Character of Incision. Nor is it error in such a case to exhibit to the jury the mutilated
heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon
the cause of death. 3. Instruction Concerning Aider and Abettor not Prejudicial by Adding "and to Some Degree Contributed thereto" though Surplusage. The addition by the court to a special instruction to the jury
asked by the defendant of the words, "and to some degree contributed thereto," was not prejudicial but mere surplusage, since the conclusion that he was an aider or abbettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.
Andy v. State.
4. "Guilty of Crime Charged" Sufficient Verdict in Second Degree Murder. A verdict, “Guilty of the crime charged," in a prosecution for
second degree murder, is properly received. (Syllabus by the court.]
Russell J. Burt, for plaintiff in error.
H. C. Pontius and Frank N. Sweitzer, for defendant in error.
The plaintiff in error, Joseph Andy, was indicted by the grand jury of Stark county, Ohio, at the September term, 1912, for murder in the second degree. Afterwards the accused was placed upon trial, and was found guilty as charged in said indictment. A motion for a new trial was filed, which was overruled, and the accused was sentenced according to law. A bill of exceptions was taken, embodying the evidence taken upon the trial, including the charge of the court, and said case was brought into this court for review upon a petition in error filed for that purpose.
Numerous grounds of error are alleged in said petition in error for the reversal of the judgment of the court of common pleas, but the errors relied upon by plaintiff in error and argued to this court are:
1. That the verdict of the jury is clearly against the weight of the evidence.
2. That the court below erred in permitting one Mary Pew, a sister of one of the state's witnesses, to act as interpreter throughout the trial below.
3. That said court below erred in allowing the introduction in evidence of the heart of decedent.
4. That said court erred in its charge to the jury.
5. That said court erred in its charge to the jury upon the subject of aiders and abettors.
6. That said court erred in receiving the verdict as returned by the jury.
First. It is contended that the verdict of the jury was
Stark County Circuit.
clearly against the weight of the evidence. On account of the importance of the case to the plaintiff in error, as well as to the state, we have reviewed the evidence in the entire record with no little care, and with special reference to the contention of counsel for plaintiff in error on this ground; and as a reviewing court, keeping in mind the rule that the verdict of a jury should not be set aside unless it is manifestly against the weight of the evidence, we are of the opinion that the record presents a case which does not require this court to interfere with the verdict of the jury on the ground stated.
Second. It is contended by the plaintiff in error that there was' an abuse of discretion upon the part of the court below in. permitting one Mary Pew to act as interpreter at the trial of the plaintiff in error, because said interpreter was a relative of certain witnesses who testified upon the trial for the state. The record fails to show that said interpreter was biased or prejudiced, or in any way interested in the outcome of said trial; and exercising a sound discretion possessed by the court presiding at said trial, in the absence of any showing that said interpreter was disqualified to act as such, we think there was no error upon the part of the court in this respect.
Third. It is argued by the plaintiff in error that the court below erred in allowing the state to make profert of the heart of the decedent before the jury. The burden of proving the cause of death being upon the state, it was certainly the privilege of the state, in our judgment, to make such proof by the production of this mutilated organ, as tending to show the character and extent of the incision made therein, and we think that the action of the court in this respect was not erroneous.
Fourth. It is claimed by plaintiff in error that the court below erred in its charge to the jury, and especially upon the subject of aiding and abetting in the commission of the crime charged in the indictment. A written request was submitted by the plaintiff in error, before argument, upon this subject with the request that the same be given by the court to the jury; and it appears that it was so given. But it is claimed that said court, in its general charge, when instructing the jury upon this