The opinion
*472 APPLICATION FOR REHEARING
Nos. 575-576. Decided July 15, 1940.
BY THE COURT:
Submitted on the following application of appellee, E. Burres Eliker, for a rehearing.
(1) The Court erred in holding that the decision of the trial court to the effect that the decedent had testamentary capacity at the time of revocation was against the manifest weight af the evidence.
A. Because the Court invaded the province of the trial court as the trier of the facts in passing upon the conflicting testimony concerning which the minds of reasonable men could arrive at different conclusions; and in applying the tests of reversibility on questions appealed on questions of law;
B. The Court failed to give any consideration to the presumption of competency and to the presumption that the will had been revoked;
C. The Court refused to apply the test set forth in the case of Cole v McClure, 88 Oh St 1, wherein the Supreme Court of Ohio held that in order to overcome the presumption that a will has been revoked, the evidence must be certain, satisfactory and conclusive that it was unrevoked and in existence after the death of the decedent.
A. B, and C. We accorded to appellees all presumptions to which he was entitled and gave consideration to all questions of burden of proof and recognize that in this case it was incumbent upon the proponents of the will to meet that degree of proof which is set forth in Cole v McClure, 88 Oh St 1.
It is our conclusion as stated in the original opinion at pages 8 and 9 that there is nothing in the record from which we can say that Doctor Poland’s testimony should not have been accepted for its probative value. He was the one witness who was qualified to testify as an expert upon the vital questions which determined the testamentary capacity of Mrs. Eliker.
Counsel seems to be under some misapprehension of the scope of the opinion in Chenoweth v Cary, 17 OO 82. In the cited case Judge Geiger was discussing the state of proof required to support the action of the trial court in directing a verdict. The trial court in the instant case was not, nor have we been required to apply the rule governing directed verdicts as there has been no attempt in either court to enter final judgment as a matter of law.
We have held that upon the state of the record there is evidence tending to support the claim of both the proponents and the objectors but that the finding and judgment were manifestly against the weight of the evidence because upon the determinative issue as to testamentary capacity Doctor Poland’s testimony stands practically undenied and uncontradicted- and there is nothing of consequence in the record affecting his credibility.
In Kelly v Columbus Ry. P. & L. Co., 62 Oh Ap 397 , 29 Abs 100 , we discussed the difference in the test as to when a verdict shall be directed and a motion for new trial shall be sustained as being against the weight of the evidence.
The application for rehearing will be denied.
HORNBECK, PJ., GEIGER & BARNES, JJ., concur.