Opinion
No. 24115
Decided December 18, 1967.
Wills — Lost will — Probated — Effect of order probating, in contest action — Presumption of validity.
1. When a lost will has been admitted to probate this establishes a presumption in a contest thereof that the probated document is the last will of the testator.
2. When the contestants of a lost will which has been admitted to probate offer substantially the same evidence as that presented in opposition to its probate, the court must dismiss the petition.
On October 10, 1967, at 9:00 a. m., counsel for contestants and proponents of the will of Harry Sollars presented their evidence to this court, having waived their right to a jury. The will of Mr. Sollars had previously been admitted to probate by the Probate Court of this county on May 14, 1966. The will offered to probate was a copy of Mr. Sollars' will, the original of which was lost.
Under Sections 2107.26 and 2107.27, Ohio Revised Code, the Legislature has set out the manner in which a lost will may be presented to the Probate Court for proof of its validity. In the Probate Court there seemed to be no problem with any of the elements of proof required by the statute in that the litigants agreed that there had been a will, that it had been duly executed, and that it had been lost. The only element in contention was whether or not the will was missing because it was revoked and that there was not clear and convincing testimony that the testator lacked knowledge of such loss, if not revoked.
Briefs were filed in the Probate Court by counsel on both sides of this litigation and evidence was presented to the probate judge to rule on the order of probate. This the probate judge did and from this order the contestants have filed a petition to contest the order of probate.
The only evidence presented to this Common Pleas Court was simply a reiteration of basically the same evidence presented to the Probate Court. Consequently it appears to this court that the one question that must be determined is whether or not this court has the right to review the work of the Probate Court pertaining to the ruling on the application to probate. In a very old case of Banning v. Banning, 12 Ohio St. 437, the court held in the first syllabus "where the contents of a spoliated will have been found, admitted to probate and recorded, in a proceeding duly had for that purpose in the Probate Court, such record is prima facie evidence, in a future proceeding to contest the validity of said will, not only of the due attestation and execution of said will, but also of its contents; and on the trial of the issue whether the will admitted to probate is the last will of the testator or not, the same must stand, unless the jury are satisfied, by a preponderance of proof, that it is not, in substance, the will of the testator." That being true, the work of the Probate Court relating to the contention that a will should not have been probated cannot be appealed. This was also established in Hallrah v. Lasance, 63 Ohio St. 58. Consequently, the only way for a probated will to be attacked is by contest, and Chenoweth v. Carey, 30 Ohio Law Abs. 98, defined the method to be used in as coherent a manner as any cases this court has read on the subject. In the first place the order of probate is prima facie evidence of its due attestation and other essential features. However, as the Chenoweth case states, "each and every one may be attacked by evidence produced to overcome the presumption and so in this case in addition to the question of revocation by the testator there is also the question as to whether or not the original will was itself ever executed." Furthermore the Chenoweth case defines the contestants' responsibility in the following manner: "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 and before a jury could be satisfied in setting aside a will the evidence adduced in the case against the will must outweigh both the evidence adduced in favor of the will and the presumption arising from the order of the Probate Court admitting the will to probate as the last will and testament of the testator."
Consequently it is encumbent on this court not to review what the Probate Court did when it received the will to probate but to weigh the evidence rebutting its admission to probate against the evidence used to receive the will to probate. If the rebutting evidence outweighs the prima facie presumption of its validity then the will can be declared to be invalid. The rule of "clear and convincing evidence" being necessary to establish the fact of the lack of knowledge of the testator that his will was lost is a measurement of proof to be used by the Probate Court. This decision of the Probate Court cannot be reviewed but additional testimony can be presented on a will contest in a Common Pleas Court by the contestants to rebut the prima facie presumption of the validity of the will. This fact is borne out both by the Banning case cited above, and Behrens v. Behrens, 47 Ohio St. 323. In the Behrens case, at the trial in the Common Pleas Court the contestants put on testimony rebutting the prima facie presumption that the will was valid. Witnesses were called who gave testimony showing that the testator did destroy his will. This is the proper method to be used in the Common Pleas Court. It cannot review the Probate Court's work relating to the receipt of the application to probate but only contest the validity of the probate of the will. Since the evidence presented to this court added nothing to what the probate of the will already established, the contestants have not overcome the prima facie presumption as to the validity of the will.
This court hereby rules in favor of the proponents of the will and dismisses the petition contesting said will.