Wagner v. Ziegler. said Wilhelmina Steinkamp, C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required of, or awarded against, said C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes, by said district court, then this obligation shall be void, otherwise in full force in law." A motion was filed in the district court by the plaintiffs, to dismiss the appeal for the reason that the bond is insufficient and invalid in law, and insufficient in form and amount. This motion was heard upon evidence and overruled, to which plaintiffs excepted. A trial to a jury followed. At the conclusion of the plaintiff's evidence, and after argument, the court, finding there was no evidence. proving or fairly tending to prove the issues on part of the plaintiffs showing incapacity of the deceased to make a will, directed the jury to find a verdict sustaining the will. Thereupon the jury returned a verdict accordingly. Motion for new trial being overruled, judgment of affirmance was entered, and costs adjudged against plaintiffs, to all which they excepted. Afterwards an entry was made on the journal to the effect that the plaintiffs present to the court their certain bill of exceptions herein, which, being found by the court to be true, is allowed, signed, sealed, and, on motion, is made part of the record of this case. The paper, called in the printed record "bill of exceptions," purports to contain the testimony given upon the hearing of the motion to dismiss appeal and that given at the trial. It is signed and sealed by the judge who presided at the trial, but not by either of his associates. Von Seggern, Phares & Dewald, for plaintiffs in error. 1. The statute governing the contest of wills is imperative that the trial must be by jury. This means that the question whether or not the paper writing presented is the last will must be determined, not by the court, but by the jury, and this whether any evidence is introduced or not. Wagner v. Ziegler. It is a question of fact which the court has no authority to determine under any circumstances. The court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. The court will never presume to decide upon its sufficiency, however slight it may be. This is for the jury. Walker v. Walker, 14 Ohio St. 157, 176; Cooch v. Cooch, 18 Ohio, 150; Holt v. Lamb, 17 Ohio St. 375; Revised Statutes, § 5861. There were sufficient facts admitted by the pleadings, tending to prove the issue, to require the case to be submitted to the jury. 2. The entry made by the court with respect to the bill of exceptions, was equivalent to a signing by the judges. 3. The cause was brought into the district court by an insufficient appeal bond. C. F. Steinkamp, one of the parties named in the bond as appellant, was not a party to the suit. No judgment was ever rendered against him in the case, and not being a party, judgment could not have been rendered against him in the appellate court. This being so, there could be no breach of the bond. The bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond; and if the words will not make them liable, nothing can. can be no construction, no equity against sureties. If the bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail. Myres v. Parker, 6 Ohio St. 501; McGovney v. State, 20 Ohio, 93. There The bond might have been amended, but that not having been done, the appeal should have been dismissed. Revised Statutes, § 5233. T. W Brotherton (with whom was R. L. Watters), for defendants in error. The bill of exceptions was signed by but one of the three judges composing the court. It is provided by the Revised Statutes, § 5302: "If the exception be true Wagner v. Ziegler. a majority of the judges composing the court must allow and sign it before the case proceeds." Hence there is no bill of exceptions, notwithstanding the journal entry. The pretended bill itself contradicts the record, and can not be considered by the court. As the testimony on the part of the contestants of the will is not before the court, the plaintiffs in error can rely only on the declaration of the journal entry that the court "finding there was no evidence proving, or fairly tending to prove the issues on part of said plaintiffs," directed the jury to find a verdict sustaining the will. The reasoning of the opinions in Walker v. Walker, 14 Ohio St. 157, and Holt v. Lamb, 17 Ohio St. 375, cited by counsel for plaintiffs in error, is to the effect that the proponents of the will have the right to have a jury pass upon the validity of the will under proper instructions by the court. The contestants, not the proponents, are complaining of the directions or instructions of the court. When there is no evidence proving, or fairly tending to prove the issue, upon the plaintiff to establish, he having the onus probandi, in all civil cases triable to a jury, the court may, and it is its duty, on motion of defendant-the motion being in the nature of a demurrer to the evidence -to direct the verdict of the jury. Stockstill v. D. & M. R. Co., 24 Ohio St. 83; Dick v. Railroad Co., 38 Ohio St. 389; Wells L. & F., §§ 329, 527, 532; Rich v. Rich, 16 Wend. 663; Pleasants v. Fant, 22 Wall. 116. SPEAR, J. We give attention to the questions argued by counsel so far as they are presented by the record: 1. Did the district court err in overruling the motion of the plaintiffs to dismiss the appeal? 2. Did that court err in finding that there was no evidence proving, or fairly tending to prove the issues on part of plaintiffs showing incapacity of the deceased to make a will, and in directing the jury to find a verdict sustaining the will? As to the first: The reason urged in argument why the motion should have been sustained, is that C. F. SteinVOL. 44-5 Wagner v. Ziegler. kamp, one of the parties named in the bond as appellant, was not a party to the suit. Is this shown? One of the defendants of record is Christian Steinkamp, Sr. The motion was heard upon evidence. That evidence is not before us. Notwithstanding the journal entry given in the statement of the case, the evidence contained in the paper purporting to be a bill of exceptions, can not be examined by this court, the paper having been signed and sealed by one only of the three judges who held the district court. Shillito v. Thacker, 43 Ohio St. 63. All presumptions are in favor of the judgment. For aught that appears, it may have been shown that the party named as C. F. Steinkamp in the bond was the identical party defendant named as Christian Steinkamp, Sr, in the petition. The middle initial is not infrequently dropped in the naming of parties, and it is not unreasonable to treat the affix of "Sr." as a superfluity. The record discloses no error in overruling the motion to dismiss the appeal. In support of the charge of error upon the second ground, it is insisted that there were sufficient facts admitted by the pleadings, taken in connection with the will, tending to prove the issue to require the case to be submitted to the jury. Many of the assumptions and statements of the brief are founded upon facts assumed to exist because of testimony set out in the alleged bill of exceptions. Having already found that we have no bill of exceptions in the record, it would be a needless use of space to consider them. As to the allegations of the petition. taken with the will, the court below was of opinion that they furnished no evidence tending to show incapacity on part of the deceased. We do not deem it necessary to take time with this point more than to say that we agree with the district court in that view. And having found, on conclusion of plaintiffs' testimony, that there still was no evidence tending to prove incapacity on part of the deceased to make a will at the time the will was made, what was the duty of the court? It is urged that, in passing upon the sufficiency of the Wagner v. Ziegler. evidence and directing the jury to bring in a verdict sustaining the will, the court exceeded its power, and the plaintiffs were thereby deprived of their statutory right to a trial by jury. In other words the claim is, that whatever the state of the proof-however completely the plaintiff fails to make the slightest prima facie case-yet the court must, perforce, send the case to the jury, omitting the usual and ordinary instructions which, in other cases, under like circumstances, would be given. The statute, in regard to the contest of wills in force at the time of the trial below, Revised Statutes, sec. 5861, and following, provides that an issue shall be made up, whether the writing produced is the last will of the testator or not, which shall be tried by a jury; and, unless a new trial be granted, or the cause appealed, the verdict shall be conclusive, and the court shall enter judgment thereon; that, on the trial, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will; that the party sustaining the will shall be entitled to open and close the evidence and argument-he shall offer the will and probate, and rest. The opposite party shall then offer his evidence. The party sustaining the will shall then offer his other evidence; and rebutting evidence shall be offered as in other An appeal may be had to the district court; and that court shall direct the issue tried in the court below to be re-tried in that court in the same manner. cases. The court may not dispose of the case by a decree, nor by a judgment rendered for mere insufficiency of pleading. There must be a jury trial, if the case proceeds at all. But is the jury trial necessarily other than the common law trial by jury? We look in vain, in the brief tendered, for any satisfactory reason why it should be. The statement is, that the court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. But why? In other jury trials, the court judges not only of the competency of testimony offered, but, when it is all in, whether any evidence has been given tending to sustain the claim of the party upon whom the burden is. In con |