Opinion of the Court. Estate of Kidder, 66 Cal., 487; In re Johnson's Will, 40 Conn., 587; Dickey v. Malechi, 6 Mo., 177; Morris v. Swaney, 7 Heisk., 591. This will was not revoked. Wyckoff v. Wyckoff, 16 N. J. Eq., 401; In re Page, 118 Ill., 576; Dan v. Brown, 4 Cow. N. Y., 483; Dickey v. Malechi, 6 Mo., 177; Coddington v. Jenner, 57 N. J. Eq., 528; Southworth v. Adams, 11 Biss., 256; Mann v. Balfour, 187 Mo., 290; McDonald v. McDonald, 142 Ind., 55; In re Patterson, 155 Cal., 626; In re Steinke's Will, 95 Wis., 121; Schultz v. Schultz, 35 N. Y., 653; Williams v. Miles, 68 Neb., 463; Gardner v. Gardner, 177 Pa. St., 218; Gardner's Estate, 164 Pa. St., 420; Hutson v. Hartley, 72 Ohio St., 262. WILKIN, J. The grounds of reversal assigned in plaintiff's brief are: (1) The verdict and judgments below are contrary to law, (2) admissions of incompetent testimony, (3) refusal to give certain instructions of law to the jury, and (4) errors in the general charge. The first assignment challenges the sufficiency of the evidence produced at the trial, to establish a lost or destroyed will. While this court is not required to weigh the evidence in a case on error, and ordinarily will not do so, yet where relief is sought that can be afforded only upon clear and convincing proof, it will do so for the purpose of determining whether the proof was sufficient. Minshall, J., in Stewart v. Gordon, 60 Ohio St., 170, 174, citing Ford v. Osborne, 45 Ohio St., 1. Opinion of the Court. The standard of evidence in cases like the one at bar has been defined by the courts and textwriters in language somewhat variant but in import the same. For example: The burden of proof is on a party seeking to establish a lost will by parol evidence, to prove its contents by evidence strong, positive and free from doubt. Newell v. Homer, 120 Mass., 277; Davis v. Sigourney, 8 Metc., 487. The evidence must be clear, certain and conclusive as to its execution and its provisions and conditions. Russell v. Bruer, 64 Ohio St., 1; Miller v. Stokely, 5 Ohio St., 194; Clark v. Turner, 50 Neb., 290, 301. Where a will, unrevoked, has been lost or destroyed its contents may be proved by parol, but the fact that it was not revoked must be established by clear and satisfactory proof. In re Johnson's Will, 40 Conn., 587. In the Connecticut case, the court expounds the rule thus: "The court ought to be satisfied, not only that the character and standing of the witness are entirely above suspicion, but that he is capable of expressing with clearness and accuracy the precise meaning of the original will. Not only so, but the circumstances ought to be such as afford no suspicion of the trustworthiness of his recollection, and he should be free from bias or interest. *** This strictness is requisite in order that courts may be sure that they are giving effect to the will of the deceased and not making a will for him." In Chisholm's Heirs v. Ben, 7 B. Mon., 408, Marshall, C. J., declares: "If there be not some stringency in the rule of proof, * if a doubtful inference ** Opinion of the Court. is to authorize the establishment of a will, an inducement and opportunity may be offered for setting up spurious wills, the prevention of which is no less the subject of the statute and of the law, than is the frustration of the fraud which would suppress a valid will." * The legal policy of the rule is hinted at in a note to 3 Redfield on Wills (3 ed.), 16, thus: "There are so many motives which might induce the suppression of a will, the possible motives for such an act are so infinitely diversified, that it will always be next to impossible to guard against all possibility of fraud and imposition; and it is safe to act upon that degree of incredulity, in all such matters, which will be sure to expose any suppression of it (the will) from sinister designs. A copy of an alleged lost will is obviously more satisfactory than any amount of testimony dependent upon the memory of witnesses." "By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt." 1 Greenleaf on Evidence (16 ed.), Sec. 2. "Evidence is said to satisfy the mind when it is such as frees the mind from doubt, suspense or uncertainty." Baines v. Ullman, 71 Tex., 537. "To 'satisfy' a body of men of the truth of a disputed fact, requires much more than a preponderance of the evidence. Clear and convincing evidence must be adduced." Bradbury, J., in Kelch v. State 55 Ohio St., 146. Opinion of the Court. The case made in the transcript before us does not bear the test which the law applies to it. Henry M. Cole was a lawyer and lately a common pleas judge. In 1903 he drew his own will with his own hand. It appears that he made two drafts, possibly three. It is apparent that three witnesses attested these drafts, but if any two of them signed the same draft, the evidence fails to show which draft they signed, for not one of them read the document he signed or heard it read; the nearest identification is that each draft was in the testator's handwriting upon egal-cap paper ruled. One of these drafts was attested by a Mr. Bowman. No other witness had subscribed to it when he signed it, and he never saw it atterwards. One of the drafts was signed by a Mr. Stubbs, and if it was attested, by whom Stubbs does not remember, but he thinks that the name of Daisy Burtch was not signed. Daisy Burtch signed as a witness to one of the drafts Another witness had signed that paper, and her best recollection is Mr. Bowman was that other witness. Now, one Thomas L. Brewer testifies that in the fall of 1904, Judge Cole read his will to him, handed it to him, Brewer read it himself and handed it back to the judge. There was no comment upon it nor discussion about it. He says there were two names subscribed as witnessesone was Mr. Bowman's, and he thinks Mr. Stubbs' was the other; Daisy Burtch's name was not there, and he is not positive Mr. Stubbs' name was there, but he knows there were two names. He Opinion of the Court. never saw the will afterwards nor talked to the judge about it. Brewer is the only person who assumes to know, or attempts to reproduce, the contents of that will; hence it is upon his recital of the contents that the probate court established the lost or destroyed will, "as near as can be ascertained." Whether the identification of a lost will "as near as can be ascertained" from the mere memory of one witness, after the lapse of nine years, is sufficient to establish the will, we need not decide, as a bald proposition. The result of all the evidence in the record shows, to a fair degree of certainty, that in and about the year 1904, Judge Cole had a will and that he intended to dispose of his estate substantially as found by the probate court. But the questions presented to us are: Is the will which he exhibited to Mr. Brewer the last though lost will? Or was the will attested by Daisy Burtch, though lost also, the last will? For we must bear in mind that Mr. Bowman attested but one will; that is the will Daisy thinks she attested, and that is, also, the will which Brewer thinks he read nine years ago; but the will Brewer saw, Brewer is sure, had but two witnesses, one being Bowman. Could Stubbs be the other? Neither he nor Brewer says he was. Now, there is not an iota of evidence in the transcript to prove that either of the two wills survived the collapse of the testator's mental faculties; but there is evidence tending to prove that two years before he was adjudged insane he destroyed the will attested by Bowman and |