Keyl v. Feuchter, 56 Ohio St. 424, 47 N. E. 140; Marshall v. Mason, 176 Mass. 216, 79 Am. St. Rep. 305, 57 N. E. 340; Glancy v. Glancy, 17 Ohio St. 134; Wineland's Appeal, 118 Pa. 37, 4 Am. St. Rep. 571, 12 Atl. 301; Re Andrews, 162 N. Y. 1, 48 L. R. A. 662, 76 Am. St. Rep. 294, 56 N. E. 529.

We are not required in this case to ascertain the intention of the testator in making the will before us, nor to construe its provisions, but to determine whether it was executed according to law. The undisputed testimony shows, and counsel for the parties agree, that it was the intention of Henry Irwin to make the marginal clause found on the sixth or last page a part of that instrument. As appears from the intended facsimile in our statement of the case, the body of the alleged will was written on the horizontal lines of the pages, but leaving, at least on the sixth or last page, a considerable blank space to the left of the ends of the lines. The signatures of the testator and the witnesses follow below the attestation clause, and are under the body of the instrument, and at its end, as if no marginal clause had been inserted. This marginal clause commences on the left edge of the page, running lengthwise therewith from near the bottom to near the top thereof. The lower end of the clause is 1 inch or more below and to the left of the names of the witnesses, and about 3 inches below and to the left of the signature of the testator. Between the lower end of the clause and the names of the witnesses there is a blank space of about 1 inch, and between it and the attestation clause the blank space is about 11⁄2 inches in width Between the subscribing and attestation clauses on the horizontal lines there is a blank space of four lines.

We think we have sufficiently described the location and relative situation of this clause, which constitutes the ground of the contest. Its history otherwise is very brief, and may be summed up in a few words. The will, as originally prepared by the scrivener, occupied, and yet occupies, six pages of foolscap or legal cap paper, on the last of which are the signatures of the testator and the witnesses. It was read over to the testator, and he expressed his . satisfaction with its provisions so far as they had been written, but refused to sign until another provision should be inserted. He desired to prevent attack on his will and

With this in, the will was read to the testator, and he expressed his satisfaction, and signed it at the place before stated. The party or parties contesting the will alleged in the petition and contended at the trial that the will was void, because it was not signed at the end thereof.

On this subject our statute (Rev. Stat. 5916) provides: "Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be hand written or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested," etc. We have seen that the testator intended the clause written on the margin to be a part of his will, and that he declined to sign until it or its equivalent was inserted somewhere in the instrument, but he did not direct where it should be inserted. If the language so written has no legal signification, and has no effect on the other provisions of the will, it might be treated as mere unimportant surplusage, as in Baker v. Baker, 51 Ohio St. 217, 37 N. E. 125. In that case the testator, after having signed the instrument disposing of his property and appointing his sister-in-law as the executrix, which was duly witnessed, wrote under the attestation clause the words, "My sister-in-law is not required to give bond when probated," and signed his name thereto, which was not attested. It was held that these words could not affect the construction of the will, were not dispositive in character, and that the will was signed at the end thereof. But if the clause is of a dispositive character, and may, in certain events, change the course of some or all of his property, its location in the instrument is of essential importance in deciding whether the will is signed at its end. Although the language of the marginal clause is crude, and is the expression of an illiterate man, yet its meaning is not doubtful when coupled with the directions of the testator which led to its insertion. According to the undisputed testimony, he was determined that his estate should be settled in peace,

and according to his will, and that if any "child or heir" should not "take" with his will, he should be cut off without one dollar of his estate. Clearly, the clause has a dispositive character, and this seems to be admitted by counsel for plaintiff in error. In Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419, it is held that "a condition in a will whereby the testator excludes any one of his heirs who 'goes to law to break his will' from any part or share of his estate is valid and binding; and effect will be given to it as well in respect to bequests of personalty as to devises of real estate." However, they urge that, while this is true, the beneficiaries under the will have all united to uphold it, and that this appears by their joint answer in this case, wherein they allege that the paper produced as the last will and testament of Henry Irwin is his valid last will and testament. Therefore, it is argued, the marginal clause can never have any chance for operation, and is no longer of consequence, in the settlement of the estate. But it must be borne in mind that the will was executed without any knowledge of what the “child or heir" might subsequently decide to do, and hence the intense desire to provide for the contingency. The will became operative when admitted to probate. The testator died, leaving the instrument just as he had made it, containing within its scope this dispositive clause, and no pleading could be filed in a case contesting the will that would change its dispositive character. It must be judged as it stood when inserted in the will, and as it was probated with the balance of the instrument.

We therefore recur to the question, Was the will signed at its end, as required by statute? The trial court submitted the question to the jury in a very concise instruction, which covered the whole law of the case. It is this: "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 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 brief charge implied that the matter written in the margin is of a dispositive character, which was the decision of a question of law for the consideration of the court. The only questions of fact for the determination of the jury were: (1) Was the matter upon the margin written there before the testator signed the will? (2) Did he intend

such written matter to be part of his will? If "Yes" is answered to both inquiries, then the statute is interposed by the court, and the jury was told that the will was not signed at its end. This charge is severely criticized by counsel as a usurpation of the province of the jury, whereby the court, and not the jury, decided the contest. We cannot concur in this criticism. It is true that, after a will has been admitted to probate, and is contested under the statute in the court of common pleas, the will and the record of its probate make a prima facie case for the contestees, and the burden is upon the contestants to overthrow the will, and that the ground of contest, as a general rule, is to be determined by the jury. But the court does not lose its jurisdiction to decide all questions of law that may arise on the trial. The questions of fact were left to the jury, and the court properly charged as to the legal effect of their findings. There could be no mistake as to the findings of fact, for it was clear and beyond dispute that the marginal matter was written before the testator signed the. instrument, and that he not only intended, but demanded, that it be written somewhere in his will. The will was with the jury, and hence the charge of the court only applied the law to the facts, and this was the duty of the court. In Wagner v. Ziegler, 44 Ohio St. 59, 4 N. E. 705, this court held that, "in the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs, showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiffs' testimony, to direct the jury to find a verdict sustaining the will." That holding simply means that the powers, duties, and functions of the court in the trial of will contests are practically the same as in other jury trials of civil cases.

Taking the instrument, the original last page containing the marginal matter as there found, and the undisputed evidence as to its insertion before the signing by the testator and the witnesses, and that the testator intended it to be a part of the will, did the trial court correctly apply the law? We think it did. The statute (§ 5916) prescribes the formalities to be observed in the execution of a will, and we think the intention of the legislature, as thus expressed, is very plain. The history of this and similar legislation evinces a purpose that such dispositions of property, real or personal, should be so executed as to prevent, as far as practicable, unauthorized and fraudulent. additions and interlineations before or after the execution of the will. There should be some continuity in the expression of the

A

Surety Bonds," passed April 20, 1904, (97 Ohio Laws, 182), is unconstitutional and void, being in violation of article 1, §§ 1 and 2, of the Constitution.

(January 3, 1905.)

PPLICATION for a writ of mandamus to compel defendant to accept an administratrix's bond. Allowed.

The facts are stated in the opinion. Mr. Lawrence T. Neal, for relator: A necessary requirement of all legislation is that it should not be unequal or partial in its character and effect.

Bill of Rights, Ohio Const. art. 1, § 2; State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 30 L. R. A. 218, 41 N. E. 579; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 29 L. R. A. 386, 53 Am. St. Rep. 622, 41 N. E. 263; Harmon v. State, 66 Ohio St. 249, 58 L. R. A. 618, 64 N. E. 117; State v. Gravett, 65 Ohio St. 289, 55 L. R. A. 791, 87 Am. St. Rep. 605, 62 N. E. 325; Williams v. Donough, 65 Ohio St. 499, 56 L. R. A. 766, 63 N. E. 84; State v. Gardner, 58 Ohio St. 599, 41 L. R. A. 689, 65 Am. St. Rep. 785, 51 N. E. 136; Atchison & N. R. Co. v. Baty, 6 Neb. 37, 29 Am. Rep. 356; | Wilder v. Chicago & W. M. R. Co. 70 Mich. 382, 38 N. W. 289; Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500; Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Com. use of Titusville v. Clark, 195 Pa. 634, 57 L. R. A. 348, 86 Am. St. Rep. 694, 46 Atl. 286.

The legislature has made a discrimination in favor of surety companies by actually assuming to delegate to these companies the power to determine what kind of a bond or undertaking any party or officer, other than the superintendent of insurance and notaries public, and executors, administrators, guardians, trustees, and other fiduciaries whose bonds do not exceed $2000 in amount, shall be required to give. It is, in effect, a delegation of legislative power to surety companies; and the Constitution and a wise public policy alike forbid the delegation of any such power to a private corporation.

Harmon v. State, 66 Ohio St. 249, 58 L. R. A. 618, 64 N. E. 117; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Senate of Happy Home Clubs v. Alpena County, 99 Mich. 117, 23 L. R. A.

144, 57 N. W. 1101; Fogg v. Union Bank, 1 Baxt. 435.

Courts of record have the inherent power to determine judicially as to the sufficiency of any security to be required from persons subject to their order. This power is beyond legislative interference.

Re American Bkg. & T. Co. 17 Pa. Co. Ct. 274, 4 Pa Dist. R. 757.

The right to acquire, possess, and protect property is guaranteed to the people of this state by our Bill of Rights, and is declared by it to be one of the inalienable rights of

man.

Ohio Const. Bill of Rights, art. 1, § 1. This right includes the right to make and enforce contracts.

Palmer v. Tingle, 55 Ohio St. 423, 45 N. E. 313; Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 219, 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 N. E. 885; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 454; Fiske v. People, 188 Ill. 200, 52 L. R. A. 291, 58 N. E. 985; People v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343.

If an officer pleads the authority of an unconstitutional act for the nonperformance or violation of his duty, it will not prevent the issuing of a writ of mandamus.

Board of Liquidation v. McComb, 92 U. S. 532, 23 L. ed. 625; Davis v. Gray, 16 Wall. 220, 21 L. ed. 453; Osborn v. Bank of United States, 9 Wheat. 859, 6 L. ed. 233; Norton v. Shelby County, 118 U. S. 426, 30 L. ed. 178, 6 Sup. Ct. Rep. 1121.

Courts and judges will be required by mandamus to approve and accept bonds, as well as to perform other duties imposed upon them by law.

State ex rel. Adamson v. Lafayette County, 41 Mo. 225; Beck v. Jackson, 43 Mo. 117; Coats v. State, 133 Ind. 36, 32 N. E. 737; Bosely v. Woodruff County Court, 28 Ark. 306; State ex rel. Truesdell v. Plambeck, 36 Neb. 401, 54 N. W. 667; Cox v. Rich, 24 Kan. 20; Church v. United States, 13 App. D. C. 264.

Messrs. Goulder, Holding, & Masten, for respondent:

The act does not violate the 14th Amendment to the Federal Constitution.

Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96.

The general assembly may make reason

State v. Nelson, 52 Ohio St. 88, 26 L. R. A. 317, 39 N. E. 22; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259, 38 N. E. 512; Day v. Lawrence, 167 Mass. 371, 45 N. E. 751.

The right to receive property is not an absolute one, to be enjoyed without the imposition of any burdens upon the property by the state, such as are reasonably necessary for the general welfare and protection of the public and those interested in the estate.

State ex rel. Schwartz v. Ferris, 53 Ohio St. 325, 30 L. R. A. 218, 41 N. E. 579.

The propriety of regulating the giving of bonds has been recognized in this state during its existence; and, if the evils which have resulted from the giving of personal security in the large amounts have become known to the general assembly, as they have to every citizen of the state, why should it not be permitted, in the exercise of the discretion which it has, to attempt to cure those evils by placing needful safeguards against loss to those whose property the law places in the hands of another, without being charged with attempting to create a favored class?

If the subject-matter of legislation be not prohibited by the Constitution, the provisions of the law must be clearly unreasonable before the courts will declare it invalid. Sunbury & E. R. Co. v. Cooper, 33 Pa. 283; Clark's Estate, 195 Pa. 524, 48 L. R. A. 587, 46 Atl. 127.

It is competent for the legislature to decide as to what security shall be sufficient in such cases.

Johnson v. Johnson, 88 Ky, 279, 11 S. W. 5; Coleman v. Parrott, 11 Ky. L. Rep. 947, 13 S. W. 525; Wallace v. Scoles, 6 Ohio, 429; Love v. Sheffelin, 7 Fla. 40; Tessier v. Crowley, 17 Neb. 210, 22 N. W. 422.

The general assembly has power to pass laws for the conduct of the affairs of the offices created and existing, to designate the duties of public officials and the manner in which they shall be performed, and, before any person elected or appointed shall enter upon the performance of the trust, provide for the giving of bonds as security for the faithful performance according to the oath of office and the laws of the state.

State use of Knox County v. Blake, 2 Ohio St. 147; Ex parte Buckley, 53 Ala. 42; Schuff v. Pflanz, 99 Ky. 97, 35 S. W. 279.

Davis, J., delivered the opinion of the court:

The relator, Jean D. McKell, was appointed administratrix of her late husband's es

the sum of $200,000. The relator immediately tendered a bond in the required amount, but the probate judge refused to accept it, solely on the ground that it was signed by personal sureties, and not by a surety company, as required by the act of the general assembly entitled "An Act to Amend § 3641c of the Revised Statutes of Ohio, Relating to the Giving of Surety Bonds," passed April 20, 1904 (97 Ohio Laws, 182). The probate judge was fully satisfied that the bond was sufficient in every other respect. The relator, therefore, prays for writ of mandamus commanding the respondent, the probate judge, to approve and accept the bond so tendered. The respondent answers that he did not accept and approve said bond because the said statute provides that any administrator's bond in excess of $2,000 must be executed and guaranteed by a surety company or companies authorized by the laws of Ohio to guarantee the fidelity of persons holding places of public or private trust, unless the person required to give such bond shall make affidavit that he has applied to such surety company or companies for such bond and has been refused or rejected; that the bond offered by relator being in excess of $2,000 and not being executed and guaranteed by such surety company or companies, but by personal sureties, and no affidavit, as provided by law, having been filed, he was prohibited by the aforesaid statute from accepting or approving said bond. To this answer the relator has filed a demurrer. It is insisted on behalf of the relator in support of the demurrer that this statute is unconstitutional.

The provisions of the act are so interdependent and interwoven that the whole act must stand or fall together. It provides that the execution of all bonds for the faithful performance of official or fiduciary duties, or the faithful keeping, applying, or accounting for funds or property, or for one or more of such purposes, with certain exceptions, is thereby required to be by a surety company or companies. We are therefore not able clearly to perceive that the general assembly intended in any event to require bonds to be executed by a surety company or companies in any one of the classes mentioned, to the exclusion of another. This being so, if the statute is void as to administrators or other fiduciaries, it is void as to public officers, and, if void as to public officers, it is void as to fiduciaries, and the contention here made as to the bond of an administratrix involves as well the question as to the validity of the bonds of public officers.

Liberty to contract is one of the inaliena