Chaney v. Coulter. it does so outweigh such evidence and order, your verdict should be for the defendants, sustaining the will." Section 12083 G. C. provides: "On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil." That the instruction in request number 5 contains a correct proposition of law under the foregoing section of the code is not open to question, but is the same instruction contained in request number 6, which was given? If it is, then the trial court did not err in failing to repeat said request number 5, for it is held that one instruction to the jury by the court upon a given subject, when properly given, is all that is required. Said Sec. 12083 was recently before the Supreme Court of this state and was construed by it in the case of Hall v. Hall, 78 Ohio St. 415, wherein it reversed the judgment of the circuit court "for the reason that the charge to the jury (in the court below) is misleading and erroneous in that it nowhere distinctly states nor sufficiently emphasizes that the order of probate of the will, by the probate court, raises a presumption that the will so probated is the valid last will and testament of Mercy A. Hall; that the court did not clearly explain to the jury the legal effect of the provision of the statute, 'that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil,' that the jury was not instructed as it should have been instructed, that before they would be entitled to return a verdict setting aside the will they must be able to find that the evidence adduced by the contestant, Charles F. G. Hall, outweighs both the evidence adduced by the defendant, Anna S. Hall, and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of Mercy A. Hall." In the instruction given in the case before us the court did charge clearly that the burden was upon the plaintiff to show by a preponderance of the evidence that the said will was not the will of said Absolom Lynch to warrant it being set aside, and that such evidence should not only outweigh the evidence adduced by the defendants below but also the presumption arising from the order admitting the will to probate, etc., but does it appear that the trial court distinctly stated and sufficiently Coshocton County Appeals. emphasized the effect of the order of the probate of said will, or that said court clearly explained to the jury the legal provision of said statute? Interpreting the rule as laid down by the Supreme Court we think it did not, and in failing to so instruct the jury we think the court erred to the prejudice of the plaintiffs in error. Requests numbers 7 and 8 were considered and disposed of in a former part of this opinion. Request number 10 is as follows: "I charge you as a matter of law that prima facie evidence of a fact is such evidence as, in the judgment of the law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose." This request was refused, and we think was improperly refused. Under Sec. 12083 G. C. the order of probate carried with it prima facie evidence of the validity of said will and such presumption continue until overcome by competent evidence. In Gomien v. Weidemer, 39 O. A. & C. 1 (27 N. S. 177), which was a will contest case, Judge Walters in announcing the opinion in said case, quoting from Crane v. Morris, 31 U. S. 598 [8 L. Ed. 514], says: "Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted, remains sufficient for that purpose. "Prima facie evidence of a fact is such as establishes the fact, and unless rebutted or explained by the evidence becomes conclusive and is to be considered as if fully proved. State v. Burlingame, 146 Mo. 207 [48 S. W. 72]. We think that said request number 10 should have been given and in refusing to give it the trial court committed prejudicial error. Various exceptions were also taken to the general charge of the trial court to the jury, and, among other things, that the trial court erred in not fully instructing the jury as to the law to be applied under the different issues raised by the evidence in the case. As already stated, the record in the case is a voluminous one, and the evidence raised various legal questions on which it became the duty of the trial court to specially instruct Chaney v. Coulter. the jury. This is noticeably true with reference to the definitions of testamentary capacity, undue influence and fraud, and the legal presumption arising in the absence of proof tending to sustain either, which was omitted, nor does it appear that the jury were instructed as to the effect of the alleged undue influence or fraud practiced at the time of making said will, be cause unless it resulted in producing the effect charged, such proof would be unavailing to invalidate said will for undue influence or fraud. The evidence offered upon the trial raised a multiplicity of questions arising out of such evidence, it is true, but such fact in no wise procured exemption from duty of the trial court to so charge the jury that the verdict of the jury should be responsive to the facts and the law. As held in the case of Parmlee v. Adolph, 28 Ohio St. 10: "A charge to the jury should be a plain, distinct, and unambiguous statement of the law as applicable to the case made before the jury by the proof, and not mere abstract legal rules." We are therefore of the opinion that the exceptions to said charge in the respect mentioned are well taken. Referring to said charge upon the question of fraud, the trial court charged the jury as follows: "Fraud is never presumed, but must in all cases be clearly proved. Fraud alleged does not necessarily need to be proven by direct evidence. Like all other facts, it may be proven by circumstances alone, but must be clearly proven, so you will inquire into all the facts and circumstances surrounding the making of this will." We are aware that it is not unusual to find courts laying down as a rule of law that "fraud must in all cases be clearly proved," but we can not subscribe to the correctness of such rule in the face of the established rule by the Supreme Court of this state to be found in decided cases from time to time. While it is recognized that different degrees of proof are required in certain civil cases, in a case, for instance where the reformation of a contract is sought upon the ground of mutual mistake, clear and satisfactory proof is required of the party seeking such reformation, or where a family relative renders services to another in the same family, and in the absence of an express contract seeks Coshocton County Appeals. a recovery for such services, clear and convincing proof is required, or where a party seeks to engraft a trust upon an instrument in writing, clear and convincing proof is required, but in a case like the one before us, which is a civil action, is anything more than a preponderance of proof required to sustain the allegation of fraud? In Jones v. Greaves, 26 Ohio St. 2 [20 Am. Rep. 752], it is held that: "On the trial of a civil action wherein the claim or defense is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of the evidence, where the facts constituted the alleged fraud do, or do not, amount to an indictable offense." In Lyon v. Fleahmann, 34 Ohio St. 151, the judge announcing the opinion of the court in said case on page 156, cites with approval the case of Decker v. Somerset Ins. Co., 66 Me. 209 [22 Am. Rep. 562] and says: "It can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones. Such an instruction does not vitiate the rule that in civil suits a preponderance of evidence is all that is required to maintain the affirmative of the issue; for, as already stated, to create a preponderance of evidence, it must be sufficient to overcome the opposing presumption as well as the opposing evidence." In Mason v. Moore, 73 Ohio St. 275 [76 N. E. 932; 4 L. R. A. (N. S.) 597; 4 Ann. Cas. 240], which was a case involving the liability of bank directors for the publication of an alleged false statement of the bank's resources and liabilities, the rule is there stated to be that a preponderance of the evidence only is required in such case. Other adjudicated cases in this state might be cited announcing the same rule. While we are aware that a different rule in like cases is recognized in other jurisdictions, the same as the rule laid down by the court below in the case at bar, yet we are of the opinion that the rule which prevails in Ohio is, that a preponderance of the evidence only is required in such case, and entertaining this view, we hold that Chaney v. Coulter. an instruction to the jury that a higher degree than a preponderance of proof was required, was prejudicially erroneous. The court below also instructed the jury as follows: "You are the sole judges of the credibility of the witnesses, and by your own experience in life you may determine what the proof is." This instruction insofar as the jury are the sole judges of the credibility of witnesses is correct, but is the remaining part of said instruction correct? The trial court appears to have proceeded upon the assumption that the jury could substitute the result of their own experience in life in determining the proof. It is scarcely necessary to say that the evidence in a case, and not the jury's experience in life, is the standard set by the law by which the rights of parties, under the law, are to be dedetermined. True there may be cases where the common knowledge of the jury, in considering evidence, may be exercised, as, for instance, in determining the value of services in an action upon a quantum meruit, as was held in the case of Hossler v. Trump, 62 Ohio St. 139 [56 N. E. 656], and the same rule might apply in a case for damages to property where the solution of the matter under inquiry could be aided by the jury's own observation, experience and knowledge, but we know of no rule of law that permits the substitution of the juror's experience in life for the sworn testimony of witnesses in a will case where the issues raised are determinable solely by the evidence under the law. Observation, experience and common knowledge, or either, find no place or application in such case, for the issues here are testamentary capacity, undue influence and fraud. The instruction given was clearly erroneous, and prejudicially so, calculated as it was to mislead the jury from confining their inquiry to the issues presented in the case. As grounds for setting aside the verdict of the jury and the judgment of the court in this case it is alleged that "the verdict and judgment are contrary to the manifest weight of the evidence and law" and that "the verdict and judgment are not supported by any evidence." Although not unmindful of the salutary rule laid down in Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340], that, "A judgment will not be reversed because |