In Re Estate of Keithley

VAN DYKE, J.

— The appeal in this case is from the judgment, entered on the fifth day of March, 1900, admitting the will to probate, in favor of proponent, and also from the order denying contestant’s motion for a new trial. The appeal from the judgment not having been taken within time, that branch of the appeal cannot be considered.

Many alleged errors are assigned in the motion for a new trial, but in the argument of appellant’s counsel on the appeal denying said motion, stress is laid principally upon three mat- . ters alleged as error. These are, — 1. That the special verdict has no validity, from the fact that it was not signed by the jury or its foreman; 2. Errors occurring in the introduction of testimony; 3. Certain instructions given at the request of proponent.

1. At the close of the trial, contestant’s attorney submitted certain special issues, which were agreed to by proponent and submitted by the court to the jury, “ whereupon [as the record recites] the jury retired to consider the said verdict, and were afterwards returned into court with the verdict in the manner following: —

“verdict and findings of the jury..

“Was W. E. Keithley, on September 1, 1899, at the time of the making of the will in contest, of sound and disposing mind?

“Answer: ‘Yes.’

[11]

“ Did W. E. Keithley declare to G. W. Dufficey that the will in contest was his will, at the time he signed his name thereto?

“Answer: ‘Yes.’

“Did W. E. Keithley declare to Annie G. McDonald that the will in contest was his will, at the time he signed his name thereto?

“Answer: ‘Yes.’

“Did W. E. Keithley request G. W. Dufficey to sign his name to the will in contest as a witness?

“ Answer: ‘ Yes.’

“ Did W. E. Keithley request Annie G. McDonald to sign her name to the will in contest as a witness thereto?