Opinion
No. 70-232
Decided June 23, 1971.
Wills — Contest — Burden of proof — Never shifts from contestant — Evidence necessary to justify setting will aside — Evidence furnishing basis for choice among different possibilities, insufficient — Prima facie evidence arising from probate — R.C. 2741.05.
1. In a will contest, by virtue of the statute, the burden of proof is cast upon the contestant of the will and such burden never shifts from him.
2. It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden. (Paragraph three of the syllabus in Stevens v. Indus. Comm., 145 Ohio St. 198, approved and followed.)
APPEAL from the Court of Appeals for Trumbull County.
Marae Elizabeth Ohl died on April 23, 1968. In a document which purported to be her last will and testament, executed on August 22, 1961, Virginia Mae Kata, a daughter, and Millicent Helen Piazza, a friend, were named as legatees, and The Second National Bank of Warren and Millicent Helen Piazza were named as coexecutors, as well as cotrustees of a charitable testamentary trust. On April 29, 1968, this document was admitted to probate as the last will and testament of Marae Ohl. The net value of the estate, as probated, was $99,394.48. Thereafter, Virginia Mae Kata, appellant herein, brought this action to contest the will.
At the trial, the focus of attention was directed to the fourth element of testamentary capacity, as articulated in paragraph four of the syllabus in Niemes v. Niemes (1917), 97 Ohio St. 145:
"Testamentary capacity exists when the testator has sufficient mind and memory:
"First, to understand the nature of the business in which he is engaged;
"Second, to comprehend generally the nature and extent of his property;
"Third, to hold in his mind the names and identity of those who have natural claims upon his bounty;
"Fourth, to be able to appreciate his relation to the members of his family."
The evidence which is pertinent to the decedent's mental capacity follows.
Plaintiff was born on August 15, 1915, the illegitimate daughter of the decedent. Shortly thereafter, the plaintiff was placed in the home of Warder Ohl, the decedent's half-brother, and she continued to remain at his home except on occasions when the decedent failed to provide the cost of her board. On those occasions, which arose approximately every nine months between the ages of six and twelve, the plaintiff would be sent to her grandmother's house in which the decedent was living. Describing these visits, the plaintiff related that she would be required to sleep in the attic, though space was available elsewhere in the house, and her grandmother would direct abusive language to her in the presence of the decedent. When the plaintiff and other children were in the decedent's presence, the decedent would treat the other children better.
According to the plaintiff, the matter of her relationship to the decedent only arose twice between her mother and her. In this respect, the plaintiff's testimony was as follows:
"Q. Now, let me go back to the time in 1941 and 1943, what is the fact as to whether or not it became necessary for you to have a birth certificate? A. It was at the time of Pearl Harbor, and at that time no one worked without a birth certificate.
"Q. And did you go to Marae Ohl for that purpose? A. I went to Marae Ohl.
"Q. And did anyone go with you? A. Marie Deal was there.
"Q. Did you ask Marae Ohl for a birth certificate? A. I asked Marae Ohl would she help me to get a birth certificate.
"Q. Virginia, in your lifetime, on how many occasions did you really discuss the true relationship of your being the daughter and her being the mother? A. Once.
"Q. Once, when was that? A. When I was eleven.
"Q. Would you tell us what occurred at that time? A. This was another shipping back to the farm, and Marae and Warder was having problems over the keep again. And Marae said to me, `Do you know who you are?' and she said `I wondered if you knew if I was your mother; I named you Virginia, and I want you to know you are carrying my name, not Warder's.'
"Q. And during your whole life, how did you refer to Miss Ohl, what did you call her? A. All my life, I referred to her as Aunt Marae.
"Q. Now, in 1941, when you asked for a birth certificate and Marie Deal with you, what statements were made by Marae Ohl, do you recall? A. When I asked her if she would help me to get a birth certificate, she screamed, `I have never written it, and I shall never write as long as I live.' At the time I tried to point out that I had to have this for working purposes.
"Q. Virginia, was there another statement made by her at that time concerning your birth, about your birth? A. I went to say I know who my father is, and again, very harshly, she said `Who in the hell told you that?' And I told her, and I said I knew where I was born at the same time, and then, she said, `How do you know, maybe you were never born.'"
The evidence indicates that, with the exception of five instances, the decedent did not acknowledge, either publicly or privately, her relationship to the plaintiff. In the presence of others, the decedent referred to plaintiff as her niece, and she failed to recognize their relationship for federal income tax purposes or in her last will and testament.
Furthermore, the plaintiff's direct examination reveals that the contracts, admitted in evidence, under which Marae Ohl taught school stated that such contracts would become terminated upon marriage.
Throughout the years, until the decedent's death in 1968, the plaintiff did have periodic contacts with her mother. On those occasions, the plaintiff, as well as her children, referred to the decedent as Aunt Marae. The evidence revealed further that in the later years, 1945 and after, if the plaintiff visited the decedent at a time when the latter had other company, the decedent would not see her daughter in their presence. For example, the decedent would meet the plaintiff in her driveway or in a room other than that in which other company was waiting. If the plaintiff extended an invitation to her mother and other guests, her mother would not attend if she knew that other guests would be present. Moreover, the decedent would not attend family gatherings. Yet, when the plaintiff visited the decedent in the absence of any other company, the decedent would chat with her daughter for one or two hours.
Turning to the decedent's character and personality, the evidence is replete with testimony to the effect that throughout her life the decedent had a brilliant mind as well as good business judgment, was considered a capable teacher and was recognized as a charitable and friendly person.
In response to a hypothetical question, covering substantially the foregoing testimony, plaintiff's psychiatric medical expert testified as follows:
"Q. Assuming that the facts given in the hypothetical question are true, do you have an opinion within reasonable medical certainty as to the mental condition of Marae Ohl at the time of the making of this will in 1961? A. I do.
"Q. What is that opinion, doctor? A. I would feel that — I would feel and think that she had what I would call an obsession about denying the fact that she had a daughter. And there seems to be a pattern running through her of denial. It appears to be a part of rejection of this daughter, personally. And she would maintain this type of thinking, I would feel at the time of the making of the will, too.
"Q. Doctor, do you have an opinion as to whether this woman, being Marae Ohl, would have been influenced in her thinking by this obsession that you just stated? A. I think so, definitely, yes.
"Q. And doctor, do you have an opinion within a reasonable medical certainty as to whether this woman, Marae Ohl, would have been influenced in her behavior by this obsession that you have explained? A. First, in her thinking, yes, and in her behavior, also yes.
Under cross-examination, this witness testified further:
"* * *
"Q. It's unusual for a person who has a child to not always proclaim this to the world. Do you feel that the person who has a child by nature is going to tell the world? A. Out of wedlock?
"Q. Yes. A. I'd say it's far more frequent not to have it public.
"Q. Pardon? A. Not to have it public, to keep it hidden, this is very common.
"Q. That's frequent? A. Yes.
"Q. Does that person, then, have a delusion? A. No.
"Q. Though they may hide the child? A. Though they may hide the child, yes."
The defendants' motion for a directed verdict at the close of the plaintiff's case was overruled. The jury returned a verdict against the document probated on April 29, 1968, and the trial court rendered judgment on the jury verdict. Subsequently, the defendants made a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. The trial court overruled this motion. In their assignments of error in the Court of Appeals, as in those two motions, the defendants assigned insufficiency of the evidence as one of the grounds for appeal.
The Court of Appeals reversed and vacated the judgment of the Common Pleas Court and entered final judgment for the defendants, stating that the writing of Marae Elizabeth Ohl admitted to probate in the Probate Court of Trumbull County, Ohio, and produced upon the trial in the court below, is the last will and testament of Marae Elizabeth Ohl.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Letson, Letson, Griffith Kightlinger, Mr. William N. Letson and Mr. David L. Orosz, for appellant.
Messrs. Hoppe, Frey, Hewitt Milligan, Mr. John T. Milligan and Messrs. Wern Swift, for appellees.
Paragraph six of the syllabus in Kennedy v. Walcutt (1928), 118 Ohio St. 442, states:
"In a will contest, by virtue of the statute, the burden of proof is cast upon the contestant of the will and such burden never shifts from him."
R.C. 2741.05 reads:
"On the trial of the issue made up as provided in Section 2741.04 of the Revised Code, the order of probate is prima facie evidence of the attestation, execution, and validity of the will or codicil."
What was stated in paragraph three of the syllabus in Stevens v. Indus. Comm. (1945), 145 Ohio St. 198, is equally applicable to this case:
"It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden."
The evidence produced in this case was, at best, equally susceptible of substantiating either of two opposing theories. On the one hand, as plaintiff argued, these facts indicate that the decedent, influenced throughout her life by her obsession or delusion to deny the existence of her illegitimate daughter, continued under the influence of this delusion or obsession through the time of executing her will. Yet, the very same evidence establishes the economic pressure and social embarrassment under which the decedent, while maintaining her mental agility and memory, labored, the reasonable inference from such testimony being that the decedent desired to hide her relationship to the plaintiff, even in her will.
In our society, it is a fundamental right of every individual to be able to dispose of his property, in accordance with the law, as he deems desirable.
To engage in conjecture is beyond the perimeter of the jury's prerogatives. Viewing this evidence in the light most favorable to the plaintiff, it is apparent that at the core of this case is a controversy between, at best, two equally permissible and reasonable interpretations.
In the case at bar, an analysis of the record reveals that the plaintiff has failed to provide probative evidence on the issue of the decedent's testamentary incapacity at the time when she executed her will in 1961. Therefore, the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN and LEACH, JJ., concur.
SCHNEIDER and DUNCAN, JJ., dissent.
I concur in the syllabus and in the judgment. I do not agree, however, that this is a controversy between "two equally permissible and reasonable interpretations." In my opinion this is a case where "reasonable minds," by the application of the proper law, can come to but one conclusion, i. e., that there was a failure of proof that decedent lacked sufficient mind and memory to be able to appreciate her relation to her illegitimate daughter. The issue in a will contest case, such as this, is not whether a decedent does truly "appreciate" such a relationship in the light of the current social mores, but whether the decedent lacked testamentary capacity. Niemes v. Niemes (1917), 97 Ohio St. 145. Here there was no proof which would warrant a conclusion that decedent was other than of "sound mind and memory" within the legal meaning of these words in R.C. 2107.02.
O'NEILL, C.J., and HERBERT, J., concur in the foregoing concurring opinion.