Richardson v. Jenks et al.

a petition in error in the circuit court where the order of the common pleas was affirmed. On the 25th of May, 1895, he filed a petition in error here to obtain a reversal of the judgment of the circuit court. To the petition in error here the defendants in error answer, alleging that on April 2, 1895, Richardson, being a nonresident of the state, made application to said court of common pleas for the removal to the circuit court of the United States for the Northern District of Ohio, of the cause in which said proceeding for an attachment was had; that upon his application said cause was removed to the federal court and there proceeded in to final judgment. To this answer the plaintiff in error demurs.

Held: Notwithstanding the right of a party under the code to prosecute error to an order made in special proceeding in an action, jurisdiction of such proceeding must be in the same courts with that of the action to which it is auxiliary. The cause having been removed to the federal court, that court will not only determine the rights of the parties but award appropriate remedies.

Demurrer to answer overruled, and petition in error dismissed.

Keyl et al. v. Feuchter et al.

KEYL ET AL. v. FEUCHTER ET AL.

Wills-Validity of-Acknowledgment of signature.

One essential to the admission of a paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, in the presence of the two subscribing witnesses.

(Decided May 11, 1897.)

ERROR to the Circuit Court of Summit county.

On February 4, 1880, one John Feuchter deposited with the probate judge of Summit county, a paper purporting to be his last will and testa'ment. After the decease of Feuchter, which occurred in 1882, the probate judge opened the purported will, and it was produced for probate. The body of the paper was in due form as a will, and the attestation clause appeared as follows:

"In witness whereof, I do hereunto set my hand and seal this 4th day of February, one thousand eight hundred and eighty.

(Signed)

"JOHN FEUCHTER.

(Seal.) "Signed and acknowledged by said John Feuchter as his last will and testament in our presence, and signed by us in his presence.

"Charles Wilhelm, residence, Akron, Summit county, O. Thomas C. Brandon, residence, Akron, Summit county, Ohio."

The deceased left no widow, but left a son, Henry Feuchter, who was duly notified, and appeared at the hearing. Katharine Keyl, and others, plaintiffs in error, residing in Germany, next of kin, were not notified. A hearing was had and an order made, refusing to admit the paper writing to probate. Some months after, the plain

Keyl et al. v. Feuchter et al.

tiffs in error, instituted a proceeding in that court for the purpose of obtaining probate of the alleged will. The application was refused. From this

order an appeal was taken to the court of common pleas, and that court dismissed the appeal. This judgment of the common pleas was reversed by the circuit court and the case remanded to the common pleas for further proceedings. The judgment of the circuit court was affirmed by this court (48 Ohio St., 357), on the ground that the plaintiff's in error, having had no notice of the proceedings in the probate court, were not concluded thereby, and had the right to repropound the will.

On the hearing in the court of common pleas, witnesses were called by whom it was shown that the signature, John Feuchter, to the alleged will was his genuine signature; that he was at the date of the same of full age, and of sound mind and memory; that the witness, Thomas C. Brandon, was deceased, and that the signature purporting to be his as a witness, was his genuine signature. The other witness to the paper, Charles Wilhelm, was produced and by him it was shown that John Feuchter, at the time witness signed the paper, was not under any restraint. The circumstances of the signing were testified to by him as follows:

In chief. Question: I produce this paper which purports to be his last will and testament, and ask you, Mr. Wilhelm, whether that is your signature as witness, at the bottom of that paper? A. Yes, that is my name and signature.

Q.

Did you see Feuchter on the day you made that signature? A. When I made the signature?

Q. Yes, sir. A. Why, I suppose so, yes.
Q. And where did you see him? A. Very

Keyl et al. v. Feuchter et al.

likely at my place of business, at the packing house.

Q. And do you remember of seeing him there at the packing house? A. I suppose so, yes; I couldn't say positive, but I think so, he was there.

Q. And what did he come there for, if you know? A. Well, he came there to ask me to go with him and witness the paper, that is my recollection of it.

Q. And did you go with him? A. Yes, sir.

Q. Where did you go? A. My recollection is, that we went to the Harmonie Hall, to the Leopold block.

Q. To the Leopold block? A. Yes, sir.

Q. And to whose office, or to what place in the Harmonie Hall? A. To Squire Brandon's office. Q. Did you know Squire Brandon? A. Oh, yes.

A.

Q. Now, after you got into Squire Brandon's office, do you recollect what took place there? Yes.

Q. Well, what took place there? A. Well, I signed that paper.

Q. Anything else? A. That is all I remember. Q. Who produced the paper? A. Well, my recollection is that Feuchter did; he asked me to witness it, and he produced it, and I signed it and left.

Q. What did he say when he asked you to sign it? A. Well, he said nothing, said nothing, except if I wouldn't go with him and witness a paper, sign a paper, he said nothing at all.

Q. Who else was there at the time besides you and Brandon and Feuchter? A. I could not tell. My recollection-I guess there was nobody there, but I couldn't tell positive about that.

Keyi et al. v. Feuchter et al.

Q. Do you know what was done with the paper after you signed it? A. No, sir.

Q. Was he under any restraint at that time? A. Under what?

Q. Under restraint. Was anybody forcing him, or urging him to sign the paper at the time? A. No, sir, I don't know whether he was under any restraint or not; I don't know as to that.

Q.

Did you hear anybody say anything to him? A. No, sir.

Q. Do you recollect anything about that? But you do recollect that he produced the paper, and asked you to sign it, and you did sign it? A. Yes, sir-never said nothing about a will, either. Q. Did he ask you to sign it as a witness? A. He told me to witness a paper for him, to witness some transaction.

Q. Was his name signed to the paper at the time he asked you to witness it? A. My recollection is there was no name there.

Q. Well, have you any recollection on the subject? A. A. To the best of my recollection, I seen nothing; I didn't look over the paper.

Q. You didn't look over it at all? A. Not to my recollection.

Q. Now, do you mean to say that his name wasn't there? A. I havn't seen it.

Q. Well, did you sign your name when his name wasn't there? Is that what you want us to understand? A. Yes, sir, I signed my name and didn't see his name at all-I thought I signed a lot that he sold, or something of that kind; he didn't mention no will or nothing; it didn't make no more impression on me or nothing; never thought he made a will.