Imagens das páginas

the opinion, on page 184 of 53 Ohio St., page, tional argument against the existing law. 186, 29 L. R. A., page 635, 53 Am. St. Rep., Its validity or invalidity does not play or and page 141 of 41 N. E., Minshall, J., uses turn on the presence or absence of that this language: “Unlike other corporations clause. The arguments made here could for profit, a share in a building association have been aimed as well at all the former has, at the inception, only a nominal value. legislation on the same subject. Its value is expected to increase by the lapse But wherein is the law unconstitutional ! of time and the success of the association. The counsel say the law violates § 26 of It is contrary to the purpose and genius of article 2, which requires that “all laws of a building association that a share in it a general nature shall have a uniform operashould be paid up at the time of the sub- tion throughout the state.” But counsel scription. This is done by the payment of fail to enlighten us upon this proposition, small dues, and the crediting, at stated and it is not even suggested where the times, of the earnings in the way of divi. point of conflict exists. It cannot be disdends. When the aggregate dues with the puted that the statute is general in its credited earnings equal

the par terms, and that its nature and objects are value of a share of stock, it is paid up, general, providing as it does for the organiand the owner, for that share, ceases to be a zation and operation of corporations to be stockholder.” We deem these illustrations known as building and loan associations; of the operation of such associations suffi- those organized under the laws of this state cient to show the subject of the legislation to be known as "domestic” associations, and we are considering, and that bidding a pre- those organized under the laws of another mium for preference in obtaining a loan is state or territory to be known as “foreign” not essential to avoid our statutes against associations. It is available in any county, usury. The law no longer requires it in or. city, or village of the state, and beyond doubt der to suspend those statutes. Thêrefore it has uniform operation throughout the the claim of plaintiff in error that he state. As said in State v. Spellmire, 67 should pay no more than 6 per cent on his Ohio St. 86, 65 N. E. 622: "With us, “uniloan is not sustained.

form operation throughout the state' means But it is urged that, if our present statute universal operation as to territory. It authorizes an arbitrary rate of premium takes in the whole state. And as to persons without competitive bidding, and the usury and things it means universal operation as laws are suspended from operation on such to all persons and things in the same condiassociations, the statute is unconstitutional. tion or category. When a law is available This claim is urgently made, but in terms in every part of the state as to all persons somewhat general and indefinite. It will and things in the same condition or catenow be seen that the foregoing discussion gory, it is of uniform operation throughof the nature and characteristics of build-out the state.” This clear statement of the ing and loan associations has an added val- rule disposes of this branch of the conten

and at the outset of what we shall say tion, as no one will gainsay that the law in we suggest the difficulty of perceiving what question is available in every part of the the matter of bidding a premium for pref- state. erence in obtaining a loan has to do with the However, it is more seriously and conconstitutional question. Under the statutes fidently asserted that the legislation confers in force prior to the present enactment, special privileges these associations numerous cases came to this court involv- which tend to the creation of a privileged ing a construction of the powers and opera- class of corporations, and therefore the stattions of various building and loan associa ute conflicts with § 2 of article 1 of our tions. We have cited some of them. The Constitution. It provides that “all politconstitutional validity of the former acts ical power is inherent in the people. Govhas never been seriously questioned in this ernment is instituted for their equal procourt, and, while other questions as to the tection and benefit, and they have the right powers and rights of said corporations were to alter, reform, or abolish the same, whenthoroughly and ably argued by eminent ever they may deem it necessary; and no counsel, it seems that it did not occur to special privileges or immunities shall ever any of them that the associations were pro- be granted that may not be altered, revoked, ceeding under an invalid law. This sugges or repealed by the general assembly." The tion is not conclusive of the question, but seed of the evil said to be inhibited by a the incident is forcible at this day of the part of this section is supposed to consist life of such institutions. And we are un- of the following clause in § 3836–3, supra : able to see what the absence from the stat- "Such dues, fines, premiums, or other asute of the clause requiring competitive bid. sessments shall not be deemed usury, al. ding of premiums can add to the constitu- though in excess of the legal rate of inter



est.” This statute applies peculiarly, and ing. The amounts directly paid for the use perhaps alone, to building and loan associa- of money go indirectly to the benefit of the tions, leaving other corporations and persons stockholders through the increase in the subject to the statutes against usury.

value of their shares. Where the loans are It is asserted that the legislation unlaw- confined to shareholders, we can see good fully discriminates in favor of these build- reason for exempting such associations from ing and loan associations, and against all the operation of the usury law. That the others, whereby all do not have the equal constitutional power exists to make the exprotection and benefit of our laws. This emption we think is without serious doubt.” question is not raised by the state, but by In Zenith Bldg. & L. Asso. v. Heimbach, 77 a member of the association, whose relation Minn. 97, 79 N. W. 609-611, the supreme thereto we have already described; and his court of that state says: “It has been asright to do so in this collateral manner sumed by this court in several cases that the may well be doubted. He is a part of the provisions of the statute . exempt. association, and, equally with the other ing building associations from the operation members, amenable to the constitution and of our usury laws were constitutional, but by-laws adopted, all of which were incorpo- the question was not directly raised or derated in and became a part of his contract cided. In this case the defendant urges that with the association. However, we are not such statutes are class legislation, and thereaverse to a brief consideration of the point fore unconstitutional. The operations of raised. The organization of building and building and loan associations proper, when loan associations being authorized under a they adhere to the basic principles of their general law, we find the limitations upon organization, differ' so radically fronı orditheir powers and the grant of their authority nary loan transactions as to afford a proper in few and simple rules. The major part of basis for classification, and to justify the the government of their internal affairs is legislature in making a separate class of placed within the hands of the associations them; hence a statutory exemption of them themselves, and the mutual rights of the from the operation of usury laws is conborrowing and nonborrowing stockholders stitutional. This proposition is sustained are to be worked out according to their own on principle and the great weight of authoriregulations; of course being supervised by ty, and we hold the statutes here in queslimitations set by the statute. The law tion constitutional.” In November, 1899, creating these associations can confer upon the supreme court or Indiana, in the case of them such reasonable and ample powers for International Bldg. & L. Asso. No. 2 v. Wall, their successful operation as the general as- 153 Ind. 554, 55 N. E. 431, held that sembly may deem necessary, within the pur- “the act of 1875 (Rev. Stat. 1881, $ 3407), poses and scope of their organization, and authorizing building associations, when in doing this the legislature may classify loanable funds are on hand, to make loans the subjects upon which the powers are con- to that 'member who shall take the same ferred, and yet keep within constitutional upon the terms most favorable to the conilimits. As touching the precise question un. pany,' and declaring that premiums, fines, der consideration, we have no adjudication and interest on premiums should not be of this court; but similar provisions to ours deemed usurious, does not contravene Const. are found in the Constitutions of nearly all art. 1. $ 23, and art. 4, § 22, which prohibit of the states of the Union, and we avail the granting of special privileges and the ourselves of some of the decisions of other passage of special laws relating to interest ; states where the present question was con- since, under the essential nature of the considered. In Iowa Sav. & L. Asso. v. Heidt, tract, the member stands in the dual re107 Iowa, 297, 43 L. R. A. 689, 70 Am. St. lationship of lender and borrower.” The Rer 197, 77 N. W. 1050, it is held that same court, in the month preceding, “statutes exempting building and loan as- Security Sav. & L. Asso. v. Elbert, 153 sociations from the operation of the usury Ind. 198, 54 N. E. 753, made a similar holdlaw are not unconstitutional." On page, ing, from which we need not quote. In 303, 107 Iowa, page 692, 43 L. R. A., page Archer V. Baltimore Bldg. & L. Asso. 45 202, 70 Am. St. Rep., page 1052 of 77 N. W. W. Va. 37, 30 S. E. 241, the supreme court in the opinion of the court, by Waterman, of appeals of West Virginia held: "2. J., it is said: “First, it is said that the Building associations are authorized to building and loan law of the state is un adopt by-laws fixing a minimum premium constitutional because it is class legislation. at which to award loans to their members, Some of the arguments advanced in support such premiums to be deducted from the loans of this claim assail rather the policy of such in advance or paid in periodical instalstatutes than the power to enact them. ments. 3. Section 26, chap. 54, Code Ir theory these institutions are profit shar. [1899], in so far as it exempts building associations from the operation of the gen- a subject for the consideration of the court or eral law in relation to usury, is not uncon

the jury, the only question being whether the

will has been executed in substantial comstitutional.” The opinion of the court in

pliance with the formalities prescribed by the that case is a valuable contribution to the

statute. law of such associations. We cite, as bear- 2. Where, in the trial of such issue, the ing upon both provisions of our Constitution original will is in evidence, and shows said to have been violated in this case, the body of it to be written on horizontal Vermont Loan & T. Co. v. Whithed, 2 N. D.

lines of several pages of foolscap or legal-cap

paper, so that all its items and provisions 83, 49 N. W. 318. The case is a thorough

are in consecutive order to the end on the discussion of each of the grounds contended last page, and under which the testator's for by the plaintiff in error, and is in har- signature appears; and it also shows that mony with the other cases from which we there is written in the margin of the last have quoted. In People's Bldg. & L. Asso.

page to the left of and separated from the

body of the instrument a dispositive clause, v. Billing, 104 Mich. 186, 191, 62 N. W. 373,

extending lengthwise of the page from near 374, the supreme court of Michigan says:

the bottom to near the top thereof, and in “It is contended that the statute authorizing no manner connected with the body of the inthe formation of building and loan asso- strument by any words, mark, or character ciations is class legislation and unconstitu

as a reference to indicate where the marginal

matter is to be read in relation to the other tional. This contention is not supported by

provisions; and it is established by the testhe authorities. On the contrary, such leg

timony that the marginal matter was written islation has been upheld in a number of the after all the other provisions, at the request states, while we have found but a single au- of the testator, and before he attached his

signature under the body of the will,—then thority sustaining the contention of defendants' counsel,—the case of Henderson Bldg.

such will is not sigued at its end, as required

by statute and it is invalid for that reason. & L. Asso. V. Johnson, 88 Ky. 191, 3 L. R. A.

3. Where such will and such facts are 289, 10 S. W. 787. We think the reasoning

before the jury, it is not error for the of the authorities which sustain the con:

court to charge as follows: If you find stitutionality of such statutes is in accord from the evidence that the matter written upwith sound principle and the previous hold- on the margin of the page upon which the tesings of this court. As was said in Holmes

tator's signature appears was written before v. Smythe, 100 Ill. 413: "The statute un

the will was signed by him, and that the tes

tator intended such written matter on the der which the association was organized is

margin to be a part of his will, then I say to a general law, applicable to all the citizens you such will is not signed at the end as reof the state who choose to bring them. quired by statute, and your verdict should be selves within the relations and circumstances

for the plaintiffs, and that the paper writing

produced is not the last will and testament of provided for by it.'”

Henry Irwin." Each of the above cases cited others for its support, until the array of authority

(January 31, 1903.) is almost unbroken, and truly formidable. Most of them are modern decisions, and E RROR to the Circuit Court for Muskinmade in the light of rapidly increasing gum County to review a judgment affinancial business and needs of our people. firming a judgment of the Court of ComWe are fully satisfied that our statute which mon Pleas in plaintiffs' favor in a proceedis assailed in this case contravenes no provi- ing to contest the will of Henry Irwin, desion of our Constitution.

ceased. Affirmed. The judgment of the Circuit Court is affirmed

Statement by Price, J.:

One of the defendants in error, Metta

Elma Jacques, commenced an action in the Charles IRWIN et al., Piffs. in Err.,

court of common pleas against the plaintiffs

in error and others, contesting the will of Metta Elma JACQUES et al.

Henry Irwin, who died on the 14th day of (71 Ohio St. 395.)

February, 1901. The instrument purport*1. In an action to contest a will on the ing to be the will bears date November 4,

sole ground that it was not signed 1898, and it was presented for probate in at the end thereof as required by $ 5916, Rev. the probate court of Muskingum county on Stat., its construction or interpretation is not the 23d day of February, 1901, and it was *Headnotes by the COURT.

admitted to probate on the 9th day of

March, 1901. Letters testamentary were NOT1.-As to sufficiency of signature to will issued thereon to Dr. Lewis H. Marshall, when not placed at the end of the instrument, who thereupon qualified. After stating the see also, in this series, Warwick v. Warwick, 6 L. R. A. 775 ; Re Conway, 11 L. R. A. 796; Re relation which each of the parties to the Booth, 12 L. R. A. 452 ; and Re Andrews, 48 suit sustained to the testator, and the proL. R. A. 602.

visions of the will, the petition alleges as

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the only ground of contest the following: The issue being made up by these pleadings, "Plaintiff further says that the said paper the case came to trial by jury, and the dewriting or pretended will is not the valid fendant introduced and read to the jury the last will and testament of said decedent, be will of Henry Irwin, deceased, and the procause the same is not executed and is not bate thereof, as shown by the records of the signed at the end thereof as required by the probate court, and then rested. The origistatute of Ohio.”. Those defendants who nal will consisted of six pages of foolscap are now plaintiffs in error, except the ex- or legal-cap paper, the last page of which ecutor, answered the petition, and averred exhibits the ground of controversy. The that the said paper writing purporting to be printed record contains a facsimile of the the last will and testament of the said Hen- page, except that a red line, which could ry Irwin is his last will and testament, and not be photographed, ran from top to bottom that is was duly executed and signed at the of the page, passing between the word “esend thereof as required by the statute of tate” at the end of the marginal clause, and Ohio; and they denied each and every aver- the word "attest” and parallel with the ment in the amended petition that is incon- longer sides of the page. sistent with the statements of the answer. The following is a facsimile of the will:

ir hereunto I hereby subscribe my name the fourth day of you somber Eighteen Bundred and ninety eight: This 4th of you 1890 .


• sey will is that anny Child or her not tokens with this soill and Testament shall be disnhersted cut out and shall not

have one dale

Soigned Leald. Published beclared
by the said Henrey Irwin as and

for his last will and Trolament in the presence of ni who at this requent and ni the presence of each other have subscribe our sanes as witnesses Therets. this house bar No 4th 1888

This molument of writing no millen
repon son pages of sofer
Attesto Midnesses rames.

Henry & enom



frum &

Vitreres homes
Daniel. I tend
Marsy found

The contestants introduced evidence tend- A substantial compliance with the formal. ing to prove that after Dr. Marshall, the ities prescribed by the statute is sufficient. scrivener, had written the various provi- 29 Am. & Eng. Enc. Law, pp. 161-168, sions of the will and the attesting clause, he notes; Page, Wills, $$ 183–187; Chaffee v. read the same over to the testator, who ex. Baptist Missionary Convention, 10 Paige, pressed his satisfaction with what had been 85, 40 Am. Dec. 225; Gilbert v. Knox, 52 written, but refused to sign it as his will N. Y. 131; Sisters of Charity v. Kelly, 67 until another provision was inserted to the N. Y. 409; Brown v. Clark, 77 N. Y. 369 ; effect that, if any child or heir should be Younger v. Duffie, 94 N. Y. 535, 40 Am. dissatisfied with his will, he should be "cut Rep. 156; Turner v. Scott, 51 Pa. 126; Bakout,” and should have no part of his estate. er's Appeal, 107 Pa. 381, 52 Am. Rep. 478; To express his intention and desire in this Barnewall v. Murrell, 108 Ala. 366, 18 So. respect, the clause on the left-hand margin 831; Slater v. Cave, 3 Ohio St. 80. of the last page was written by the scrive- In determining whether a will is signed ner, and when this was read to him he ex- at its end, each case as it arises presents its pressed his satisfaction, and then signed the own controlling circumstances, and will be body of the will under the attesting clause, decided, keeping in mind the intention of and his signature was witnessed by two the legislators in enacting the requirement; witnesses. Other material facts bearing on namely, Is it so signed as to adopt the the subject appear in the opinion.

whole instrument after it is finished, as to At the close of the testimony and argu- prevent interpolation, unauthorized addiments the court charged the jury as follows: tion, improper alteration, fraud? If it is “This is a proceeding known as a contest of so signed, it is signed at the end, within a will. You will have the will with you in the legislative intent, although not literally your retirement. Your verdict will be ei. and exactly at the end. ther that the paper purporting to be the last Tonnele v. Hall, 4 N. Y. 140; McGuire v. will and testament of Henry Irwin, deceased, Kerr, 2 Bradf. 244; Younger v. Duffie, 94 is or that it is not the valid last will and N. Y. 535, 46 Am. Rep. 156; Hays v. Bartestament of the said decedent. I give you den, 6 Pa. 413; Willis v. Lowe, 5 Notes of this simple instruction to govern you in the Cases, 429; Glancy v. Glancy, 17 Ohio St. consideration of this case. If you find from 134; Baker v. Baker, 51 Ohio St. 217, 37 N. the evidence that the matter written upon E. 125; Slater v. Cave, 3 Ohio St. 80. the margin of the page upon which the tes- It does not seem possible to treat the tator's signature appears was written before sixth page otherwise than that the marginthe will was signed by him, and that the al clause be considered as belonging in the testator intended such written matter on will immediately after the subscribing the margin to be a part of his will, then 1 clause at the top of the page, and that the say to you such will was not signed at the mark of the testator is placed at the end of end as required by statute, and your ver- the document. dict should be for the plaintiff, and that Baker v. Baker, 51 Ohio St. 222, 37 N. E. the paper writing produced is not the last 125; Sisters of Charity v. Kelly, 67 N. Y. will and testament of Henry Irwin.” This 409. charge was excepted to by the defendants. That the jury is the tribunal to deter; The jury returned a verdict for the plain- mine and decide whether or not a paper tiff, finding that said paper produced is not writing in controversy is a will, seethe valid last will and testament of Henry Rev. Stat. $ 5861; Cooch v. Cooch, 18 Irwin, deceased. The court overruled a Ohio, 146; Walker v. Walker, 14 Ohio St. motion for new trial, and rendered judg. 157, 82 Am. Dec. 474; Holt v. Lamb, 17 ment on the verdict. A bill of exceptions Ohio St. 374; Dew v. Reid, 52 Ohio St. 519, was taken, and error prosecuted in the cir. 40 N. E. 718. cuit court, where the judgment was affirmed. Messrs. F. A. Durban and E. R. Meyer, Error is prosecuted in this court to reverse for defendants in error: both judgments.

The power to make a will is not an inci

dent of the jus disponendi. It is conferred Messrs. F. H. Southard and Granger by statute. & Granger, for plaintiff's in error:

Doyle v. Doyle, 50 Ohio St. 345, 34 N. E. The will of Henry Irwin was signed at 166. the end thereof.

The marginal matter in this case is a The policy of the law to sustain wills dispositive clause, and its operation would generates a liberal construction of the stat- affect the disposition of the testator's proputes stating the formal requirements for a erty. will, and frowns upon strict and literal Bradford v. Bradford, 19 Ohio St. 546, 2 construction, which would have the tenden Am. Rep. 419. cy of overthrowing wills.

The statute requires the will to be signed

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