est." This statute applies peculiarly, and perhaps alone, to building and loan associations, leaving other corporations and persons subject to the statutes against usury.

It is asserted that the legislation unlawfully discriminates in favor of these building and loan associations, and against all others, whereby all do not have the equal protection and benefit of our laws. This question is not raised by the state, but by a member of the association, whose relation thereto we have already described; and his right to do so in this collateral manner may well be doubted. He is a part of the association, and, equally with the other members, amenable to the constitution and by-laws adopted, all of which were incorporated in and became a part of his contract with the association. However, we are not averse to a brief consideration of the point raised. The organization of building and loan associations being authorized under a general law, we find the limitations upon their powers and the grant of their authority in few and simple rules. The major part of the government of their internal affairs is placed within the hands of the associations themselves, and the mutual rights of the borrowing and nonborrowing stockholders are to be worked out according to their own regulations; of course being supervised by limitations set by the statute. The law creating these associations can confer upon them such reasonable and ample powers for their successful operation as the general assembly may deem necessary, within the purposes and scope of their organization, and in doing this the legislature may classify the subjects upon which the powers are conferred, and yet keep within constitutional limits. As touching the precise question under consideration, we have no adjudication of this court; but similar provisions to ours are found in the Constitutions of nearly all of the states of the Union, and we avail ourselves of some of the decisions of other states where the present question was considered. In Iowa Sav. & L. Asso. v. Heidt, 107 Iowa, 297, 43 L. R. A. 689, 70 Am. St. Rep. 197, 77 N. W. 1050, it is held that "statutes exempting building and loan associations from the operation of the usury law are not unconstitutional." On page, 303, 107 Iowa, page 692, 43 L. R. A., page 202, 70 Am. St. Rep., page 1052 of 77 N. W. in the opinion of the court, by Waterman, J., it is said: "First, it is said that the building and loan law of the state is unconstitutional because it is class legislation. Some of the arguments advanced in support of this claim assail rather the policy of such statutes than the power to enact them. In theory these institutions are profit shar

ing. The amounts directly paid for the use of money go indirectly to the benefit of the stockholders through the increase in the value of their shares. Where the loans are confined to shareholders, we can see good reason for exempting such associations from the operation of the usury law. That the constitutional power exists to make the exemption we think is without serious doubt." In Zenith Bldg. & L. Asso. v. Heimbach, 77 Minn. 97, 79 N. W. 609-611, the supreme court of that state says: "It has been assumed by this court in several cases that the provisions of the statute exempting building associations from the operation of our usury laws were constitutional, but the question was not directly raised or decided. In this case the defendant urges that such statutes are class legislation, and therefore unconstitutional. The operations of building and loan associations proper, when they adhere to the basic principles of their organization, differ so radically from ordinary loan transactions as to afford a proper basis for classification, and to justify the legislature in making a separate class of them; hence a statutory exemption of them from the operation of usury laws is constitutional. This proposition is sustained on principle and the great weight of authority, and we hold the statutes here in question constitutional." In November, 1899, the supreme court of Indiana, in the case of International Bldg. & L. Asso. No. 2 v. Wall, 153 Ind. 554, 55 N. E. 431, held that "the act of 1875 (Rev. Stat. 1881, § 3407), authorizing building associations, when loanable funds are on hand, to make loans to that 'member who shall take the same upon the terms most favorable to the company,' and declaring that premiums, fines, and interest on premiums should not be deemed usurious, does not contravene Const. art. 1. § 23, and art. 4, § 22, which prohibit the granting of special privileges and the passage of special laws relating to interest; since, under the essential nature of the contract, the member stands in the dual relationship of lender and borrower." The same court, in the month preceding, in Security Sav. & L. Asso. v. Elbert, 153 Ind. 198, 54 N. E. 753, made a similar holding, from which we need not quote. In Archer v. Baltimore Bldg. & L. Asso. 45 W. Va. 37, 30 S. E. 241, the supreme court of appeals of West Virginia held: Building associations are authorized to adopt by-laws fixing a minimum premium at which to award loans to their members, such premiums to be deducted from the loans in advance or paid in periodical instalments. 3. Section 26, chap. 54, Code [1899], in so far as it exempts building

"2.

associations from the operation of the general law in relation to usury, is not unconstitutional." The opinion of the court in that case is a valuable contribution to the law of such associations. We cite, as bearing upon both provisions of our Constitution said to have been violated in this case, Vermont Loan & T. Co. v. Whithed, 2 N. D. 83, 49 N. W. 318. The case is a thorough discussion of each of the grounds contended for by the plaintiff in error, and is in harmony with the other cases from which we have quoted. In People's Bldg. & L. Asso. v. Billing, 104 Mich. 186, 191, 62 N. W. 373, 374, the supreme court of Michigan says: "It is contended that the statute authorizing the formation of building and loan associations is class legislation and unconstitutional. This contention is not supported by the authorities. On the contrary, such legislation has been upheld in a number of the states, while we have found but a single authority sustaining the contention of defendants' counsel,-the case of Henderson Bldg. & L. Asso. v. Johnson, 88 Ky. 191, 3 L. R. A. 289, 10 S. W. 787. We think the reasoning of the authorities which sustain the constitutionality of such statutes is in accord with sound principle and the previous holdings of this court. As was said in Holmes v. Smythe, 100 Ill. 413: "The statute under which the association was organized is a general law, applicable to all the citizens of the state who choose to bring themselves within the relations and circumstances provided for by it.'"

Each of the above cases cited others for its support, until the array of authority is almost unbroken, and truly formidable. Most of them are modern decisions, and made in the light of rapidly increasing financial business and needs of our people. We are fully satisfied that our statute which is assailed in this case contravenes no provi sion of our Constitution.

The judgment of the Circuit Court is affirmed.

Charles IRWIN et al., Plffs. in Err.,

v.

Metta Elma JACQUES et al.

(71 Ohio St. 395.)

2.

3.

E

a subject for the consideration of the court or the jury, the only question being whether the will has been executed in substantial compliance with the formalities prescribed by the statute.

Where, in the trial of such issue, the original will is in evidence, and shows the body of it to be written on horizontal lines of several pages of foolscap or legal-cap paper, so that all its items and provisions are in consecutive order to the end on the last page, and under which the testator's signature appears; and it also shows that there is written in the margin of the last page to the left of and separated from the body of the instrument a dispositive clause, extending lengthwise of the page from near the bottom to near the top thereof, and in no manner connected with the body of the instrument by any words, mark, or character as a reference to indicate where the marginal matter is to be read in relation to the other provisions; and it is established by the testimony that the marginal matter was written after all the other provisions, at the request of the testator, and before he attached his signature under the body of the will,-then such will is not signed at its end, as required Where such will and such facts are by statute and it is invalid for that reason.

before the jury, it is not error for the court to charge as follows: "If you find from the evidence that the matter written upon the margin of the page upon which the testator's signature appears was written before the will was signed by him, and that the testator intended such written matter on the margin to be a part of his will, then I say to you such will is not signed at the end as required by statute, and your verdict should be for the plaintiffs, and that the paper writing produced is not the last will and testament of Henry Irwin."

(January 31, 1905.)

RROR to the Circuit Court for Muskin

gum County to review a judgment affirming a judgment of the Court of Common Pleas in plaintiffs' favor in a proceeding to contest the will of Henry Irwin, deceased. Affirmed.

Statement by Price, J.:

One of the defendants in error, Metta Elma Jacques, commenced an action in the court of common pleas against the plaintiffs in error and others, contesting the will of Henry Irwin, who died on the 14th day of February, 1901. The instrument purport

sole ground that it was not signed at the end thereof as required by § 5916, Rev. Stat., its construction or interpretation is not *Headnotes by the COURT.

NOTE. As to sufficiency of signature to will when not placed at the end of the instrument, see also, in this series, Warwick v. Warwick, 6

L. R. A. 775; Re Conway, 11 L. R. A. 796; Re

Booth, 12 L. R. A. 452; and Re Andrews, 48 L. R. A. 662.

1898, and it was presented for probate in the probate court of Muskingum county on the 23d day of February, 1901, and it was admitted to probate on the 9th day of March, 1901. Letters testamentary were issued thereon to Dr. Lewis H. Marshall, who thereupon qualified. After stating the relation which each of the parties to the suit sustained to the testator, and the provisions of the will, the petition alleges as

The contestants introduced evidence tending to prove that after Dr. Marshall, the scrivener, had written the various provisions of the will and the attesting clause, he read the same over to the testator, who expressed his satisfaction with what had been written, but refused to sign it as his will until another provision was inserted to the effect that, if any child or heir should be dissatisfied with his will, he should be "cut out," and should have no part of his estate. To express his intention and desire in this respect, the clause on the left-hand margin of the last page was written by the scrivener, and when this was read to him he expressed his satisfaction, and then signed the body of the will under the attesting clause, and his signature was witnessed by two witnesses. Other material facts bearing on the subject appear in the opinion.

At the close of the testimony and arguments the court charged the jury as follows: "This is a proceeding known as a contest of a will. You will have the will with you in your retirement. Your verdict will be either that the paper purporting to be the last will and testament of Henry Irwin, deceased, is or that it is not the valid last will and testament of the said decedent. I give you this simple instruction to govern you in the consideration of this case. If you find from the evidence that the matter written upon the margin of the page upon which the testator's signature appears was written before the will was signed by him, and that the testator intended such written matter on the margin to be a part of his will, then 1 say to you such will was not signed at the end as required by statute, and your verdict should be for the plaintiff, and that the paper writing produced is not the last will and testament of Henry Irwin." This charge was excepted to by the defendants. The jury returned a verdict for the plaintiff, finding that said paper produced is not the valid last will and testament of Henry Irwin, deceased. The court overruled a motion for new trial, and rendered judgment on the verdict. A bill of exceptions was taken, and error prosecuted in the circuit court, where the judgment was affirmed. Error is prosecuted in this court to reverse both judgments.

A substantial compliance with the formalities prescribed by the statute is sufficient.

29 Am. & Eng. Enc. Law, pp. 161-168, notes; Page, Wills, §§ 183-187; Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 40 Am. Dec. 225; Gilbert v. Knox, 52 N. Y. 131; Sisters of Charity v. Kelly, 67 N. Y. 409; Brown v. Clark, 77 N. Y. 369; Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156; Turner v. Scott, 51 Pa. 126; Baker's Appeal, 107 Pa. 381, 52 Am. Rep. 478;` Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Slater v. Cave, 3 Ohio St. 80.

In determining whether a will is signed at its end, each case as it arises presents its own controlling circumstances, and will be decided, keeping in mind the intention of the legislators in enacting the requirement; namely, Is it so signed as to adopt the whole instrument after it is finished, as to prevent interpolation, unauthorized addition, improper alteration, fraud? If it is so signed, it is signed at the end, within the legislative intent, although not literally and exactly at the end.

Tonnele v. Hall, 4 N. Y. 140; McGuire v. Kerr, 2 Bradf. 244; Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156; Hays v. Harden, 6 Pa. 413; Willis v. Lowe, 5 Notes of Cases, 429; Glancy v. Glancy, 17 Ohio St. 134; Baker v. Baker, 51 Ohio St. 217, 37 N. E. 125; Slater v. Cave, 3 Ohio St. 80.

It does not seem possible to treat the sixth page otherwise than that the marginal clause be considered as belonging in the will immediately after the subscribing clause at the top of the page, and that the mark of the testator is placed at the end of the document.

Baker v. Baker, 51 Ohio St. 222, 37 N. E. 125; Sisters of Charity v. Kelly, 67 N. Y. 409.

That the jury is the tribunal to deter; mine and decide whether or not a paper writing in controversy is a will, see

Rev. Stat. § 5861; Cooch v. Cooch, 18 Ohio, 146; Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474; Holt v. Lamb, 17 Ohio St. 374; Dew v. Reid, 52 Ohio St. 519, 40 N. E. 718.

Messrs. F. A. Durban and E. R. Meyer, for defendants in error:

The power to make a will is not an incident of the jus disponendi. It is conferred by statute.

Doyle v. Doyle, 50 Ohio St. 345, 34 N. E.

The marginal matter in this case is a dispositive clause, and its operation would affect the disposition of the testator's property.

Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419.

The statute requires the will to be signed