Imagens das páginas

at the end. It means that when the paper | litigation that might follow at the instance is taken up and read the whole will will of dissatisfied heirs, legatees, or devisees, naturally be read before the testator's sig- and to this end requested that there be innature is reached.

serted a provision that would impose someKeyl v. Feuchter, 56 Ohio St. 424, 47 N. thing of a penalty upon any person who E. 140; Marshall v. Mason, 176 Mass. 216, would controvert the disposition he was 79 Am. St. Rep. 305, 57 N. E. 340; Glancy making of the property. The marginal v. Glancy, 17 Ohio St. 134; Wineland's Ap-clause referred to was written in the space peal, 118 Pa. 37, 4 Am. St. Rep. 571, 12 Atl. and in the manner just described, and it 301; Re Andrews, 162 N. Y. 1, 48 L. R. A. reads: “My will is that any child or heir 662, 76 Am. St. Rep. 294, 56 N. E. 529. not taken with this my last will and testa

ment shall be disinherited, cut out, and Price, J., delivered the opinion of the shall have not one doll of my estate.” court:

With this in, the will was read to the tesWe are not required in this case to as- tator, and he expressed his satisfaction, and certain the intention of the testator in mak- signed it at the place before stated. The ing the will before us, nor to construe its party or parties contesting the will alleged provisions, but to determine whether it was in the petition and contended at the trial executed according to law. The undisput- that the will was void, because it was not ed testimony shows, and counsel for the signed at the end thereof. parties agree, that it was the intention of

On this subject our statute (Rev. Stat. Henry Irwin to make the marginal clause § 5916) provides: “Every last will and found on the sixth or last page a part of testament (except nuncupative wills herethat instrument. As appears from the in- inafter provided for) shall be in writing, tended facsimile in our statement of the and may be hand written or typewritten, case, the body of the alleged will was writ- and such will shall be signed at the end ten on the horizontal lines of the pages, but thereof by the party making the same, or leaving, at least on the sixth or last page, by some other person in his presence and by a considerable blank space to the left of the his express direction, and shall be attested," ends of the lines. The signatures of the etc. We have seen that the testator intendtestator and the witnesses follow below the ed the clause written on the margin to be a attestation clause, and are under the body part of his will, and that he declined to of the instrument, and at its end, as if no sign until it or its equivalent was inserted marginal clause had been inserted. This somewhere in the instrument, but he did marginal clause

on the left not direct where it should be inserted. If edge of the page, running lengthwise there the language so written has no legal sig. with from near the bottom to near the top nification, and has no effect on the other thereof. The lower end of the clause is 1 provisions of the will, it might be treated as inch or more below and to the left of the mere unimportant surplusage, as in Baker names of the witnesses, and about 3 inches v. Baker, 51 Ohio St. 217, 37 N. E. 125. In below and to the left of the signature of that case the testator, after having signed the testator. Between the lower end of the the instrument disposing of his property clause and the names of the witnesses there and appointing his sister-in-law as the exis a blank space of about 1 inch, and be ecutrix, which was duly witnessed, wrote tween it and the attestation clause the under the attestation clause the words, "My blank space is about 142 inches in width sister-in-law is not required to give bond Between the subscribing and attestation when probated,” and signed his name there. clauses on the horizontal lines there is a to, which was not attested. It was held blank space of four lines.

that these words could not affect the conWe think we have sufficiently described struction of the will, were not dispositive the location and relative situation of this in character, and that the will was signed clause, which constitutes the ground of the at the end thereof. But if the clause is of contest. Its history otherwise is very brief, a dispositive character, and may, in certain and may be summed up in a few words. events, change the course of some or all of The will, as originally prepared by the his property, its location in the instrument scrivener, occupied, and yet occupies, six is of essential importance in deciding whethpages of foolscap or legal cap paper, on er the will is signed at its end. Although the last of which are the signatures of the the language of the marginal clause is testątor and the witnesses. It was readcrude, and is the expression of an illiterate over to the testator, and he expressed his man, yet its meaning is not doubtful when • satisfaction with its provisions so far as coupled with the directions of the testator they had been written, but refused to sign which led to its insertion. According to until another provision should be inserted. the undisputed testimony, he was determined He desired to prevent attack on his will and that his estate should be settled in peace,


and according to his will, and that if any such written matter to be part of his will ? "child or heir” should not "take" with his If “Yes” is answered to both inquiries, then will, he should be cut off without one dol- the statute is interposed by the court, and lar of his estate. Clearly, the clause has the jury was told that the will was not a dispositive character, and this seems to be signed at its end. This charge is severely admitted by counsel for plaintiff in error. criticized by counsel as a usurpation of the In Bradford v. Bradford, 19 Ohio St. 546, 2 province of the jury, whereby the court, and Am. Rep. 419, it is held that "a condition not the jury, decided the contest. We canin a will whereby the testator excludes any not concur in this criticism. It is true one of his heirs who ‘goes to law to break that, after a will has been admitted to prohis will’ from any part or share of his es bate, and is contested under the statute in tate is valid and binding; and effect will be the court of common pleas, the will and the given to it as well in respect to bequests of record of its probate make a prima facie personalty as to devises of real estate.” case for the contestees, and the burden is However, they urge that, while this is true, upon the contestants to overthrow the will, the beneficiaries under the will have all and that the ground of contest, as a general united to uphold it, and that this appears rule, is to be determined by the jury. But by their joint answer in this case, wherein the court does not lose its jurisdiction to dethey allege that the paper produced as the cide all questions of law that may arise on last will and testament of Henry Irwin is the trial. The questions of fact were left his valid last will and testament. There to the jury, and the court properly charged fore, it is argued, the marginal clause can as to the legal effect of their findings. never have any chance for operation, and is There could be no mistake as to the findings no longer of consequence, in the settlement of fact, for it was clear and beyond dispute of the estate. But it must be borne in mind that the marginal matter was written before that the will was executed without any the testator signed the instrument, and knowledge of what the child or heir” might that he not only intended, but demanded, subsequently decide to do, and hence the in that it be written somewhere in his will. tense desire to provide for the contingency. The will was with the jury, and hence the The will became operative when admitted charge of the court only applied the law to to probate. The testator died, leaving the the facts, and this was the duty of the court. instrument just as he had made it, con- In Wagner v. Ziegler, 44 Ohio St. 59, 4 N. taining within its scope this dispositive E. 705, this court held that, "in the trial clause, and no pleading could be filed in a of the contest of a will, where the testimony case contesting the will that would change introduced does not tend to prove the issue its dispositive character. It must be judged on the part of the plaintiffs, showing incaas it stood when inserted in the will, and as pacity of the decedent to make a will at the it was probated with the balance of the in- time the will was made, it is not error for strument.

the court, at the conclusion of the plaintiffs' We therefore recur to the question, Was testimony, to direct the jury to find a ver: the will signed at its end, as required by dict sustaining the will.” That holding statute? The trial court submitted the simply means that the powers, duties, and question to the jury in a very concise in functions of the court in the trial of will struction, which covered the whole law of contests are practically the same as in other the case.

It is this: “If you find from the jury trials of civil cases. evidence that the matter written upon the Taking the instrument, the original last margin of the page upon which the testa- page containing the marginal matter as tor's signature appears was written before there found, and the undisputed evidence as the will was signed by him, and that the to its insertion before the signing by the testator intended such written matter on testator and the witnesses, and that the the margin to be a part of his will, then I testator intended it to be a part of the will, say to you such will was not signed at the did the trial court correctly apply the law? end, as required by statute, and your ver

We think it did. The statute ($ 5916) pre. dict should be for the plaintiff, and that scribes the formalities to be observed in the the paper writing produced is not the last execution of a will, and we think the intenwill and testament of Henry Irwin.” This tion of the legislature, as thus expressed, is brief charge implied that the matter writ- very plain. The history of this and similar ten in the margin is of a dispositive charac. legislation evinces a purpose that such dister, which was the decision of a question of positions of property, real or personal, law for the consideration of the court. The should be so executed as to prevent, as far only questions of fact for the determination as practicable, unauthorized and fraudulent. of the jury were: (1) Was the matter up- additions and interlineations before or af on the margin written there before the tes. the execution of the will. There should be tator signed the will? (2) Did he intend some continuity in the expression of the

testator's wishes, and, if a part of the will | the uncontroverted facts lead us to the conis aside from the continuity of the language, clusion that the charge of the trial court such as the marginal matter in this case, is sound, and that the will was not signed there should be some word or character at its end. used as a reference to the place it should Bearing upon the construction of our occupy in relation to the other provisions, statute and similar statutes of other states so that the end of the will may be ascer may be cited Glancy v. Glancy, 17 Ohio tained. The authorities sustain this degree St. 135; Keyl v. Feuchter, 56 Ohio St. 424, of liberality towards the work of incompe- 47 N. E. 140; Sisters of Charity v. Kelly, tent persons who sometimes are called upon 67 N. Y. 409; Re O'Neil, 91 N. Y. 516; Re to draft wills, but beyond this the rule of Conway, 124 N. Y. 455, 11 L. R. A. 796, 26 strict observance of the statute is seldom, if N. E. 1028; Wineland's Appeal, 118 Pa. 37, ever, relaxed. The lawmaking body (our 4 Am. St. Rep. 571, 12 Atl. 301; Re Anlegislature) has the power to set the guards drews, 162 N. Y. 1, 48 L. R. A. 662, 76 Am. against fraudulent dealings with such sol. St. Rep. 294, 56 N. E. 529; Re Walker, 110 emn instruments, and it has done so, and we Cal. 387, 30 L. R. A. 460, 52 Am. St. Rep. are not at liberty to disregard them. 104, 42 Pac. 815. The doctrine of these

The will before us has no reference by cases seems to be that, as to the manner of word or character to the marginal clause. the execution of a will, the courts look to There is nothing to show in what connec- the intention of the legislature, and not the tion, if any, it should be read in relation to intention of the testator. The intention of the other items or provisions. It might be the latter is sought in the interpretation of taken as a stray but for the parol testimony | wills, but the purpose of the legislation must adduced at the trial to the effect that it was be looked to as to the formalities prescribed written before the testator signed the will, for their execution. The application of and that he intended it to form a part of it. these rules may in some cases work hardEvidently it was the last provision written, ship, and thwart an intended disposition and was so written immediately before the of property; but the safeguards cannot be testator and witnesses signed their names. frittered away because of the unfortunate The witnesses so testify, and the jury so work of an incompetent who has been given found. Is the marginal clause the end of the grave responsibility of writing a will. the will? If so, the testator did not sign The protection of wills from fraudulent and it at the end thereof. There were blank unauthorized changes, additions, and intermarginal spaces on each of the six pages lineations seems to be the paramount obconstituting the whole instrument. On the ject of the statute, and its enforcement will last or sixth page a space of four lines was no doubt work the greater good. left for testator's signature just preceding T'he judgment of the Circuit Court is afthe attestation clause. There is no refer- firmed. ence by word or character in that space to indicate that the marginal matter belongs Spear, Ch. J., and Davis, Shauck, there; nor is there any mark or reference Crew, and Summers, JJ., concur. in the entire instrument to indicate where it belongs. Hence, beginning at the first page, and reading the items and provisions | STATE of Ohio ex rel. Jean D. McKELL in their consecutive order, down to the signature, we see nothing else until we have

Huston T. ROBINS, Judge of Probate. concluded, and then see off to the left on

(71 Ohio St. 273.) the margin the matter quoted, standing alone and unidentified. Yet the testimony *The act of the general assembly entitled and agreement are that the testator intend- "An Act to Amend $ 3641c of the Revised ed this matter to be a part of his will. As Statutes of Ohio, Relating to the Giving of said in Baker's Appeal, 107 Pa. 381-392,

*Headnote by the COURT. 52 Am. Rep. 478: “Where, however the continuity of a writing otherwise complete NOTE. -A new phase of the paternal effort it attempted to be broken by the insertion of the legislature to interfere with private into it of a clause or paragraph written up rights of contract finds condemnation in the on the same or a different page or sheet, the ordinary objections to such legislation which

The statute, in addition to the clause to be inserted must be plainly re- are discussed in the notes to People v. Orange ferred to, and be susceptible also of certain County Road Constr. Co. 65 L. R. A. 33, identification. The reference must, as and State v. Loomis, 21 L. R. A. 789, incorpohave already shown, be complete in the body rates the more objectionable feature of conferof the will. The testator's intention cannot ring a special privilege on surety companies. otherwise appear.” An inspection of the Upon this branch of the case there is not enough

material in addition to that cited in the case will in contest here and a consideration of to make annotation desirable.

above case.



Surety Bonds," passed April 20, 1904, (97 144, 57 N. W. 1101; Fogg v. Union Bank, Ohio Laws, 182), is vnconstitutional and

1 Baxt. 435. void, being in violation of article 1, 88 1

Courts of record have the inherent power and 2, of the Constitution.

to determine judicially as to the sufficiency (January 3, 1905.)

of any security to be required from persons

subject to their order. This power is beA

PPLICATION for a writ of mandamus yond legislative interference.

to compel defendant to accept an ad- Re American Bkg. & T. Co. 17 Pa. Co. Ct. ministratrix's bond. Allowed.

274, 4 Pa Dist. R. 757. The facts are stated in the opinion.

The right to acquire, possess, and protect Mr. Lawrence T. Neal, for relator: property is guaranteed to the people of this

A necessary requirement of all legisla state by our Bill of Rights, and is declared tion is that it should not be unequal or par. by it to be one of the inalienable rights of tial in its character and effect. Bill of Rights, Ohio Const. art. 1, § 2;

Ohio Const. Bill of Rights, art. 1, § 1. State ex rel. Schwartz v. Ferris, 53 Ohio This right includes the right to make and St. 314, 30 L. R. A. 218, 41 N. E. 579; enforce contracts. Hocking Valley Coal Co. v. Rosser, 53 Ohio Palmer v. Tingle, 55 Ohio St. 423, 45 N. St. 12, 29 L. R. A. 386, 53 Am. St. Rep. 622, E. 313; Cleveland v. Clements Bros. Constr. 41 N. E. 263; Harmon v. State, 66 Ohio Co. 67 Ohio St. 219, 59 L. R. A. 775, 93 Am. St. 249, 58 L. R. A. 618, 64 N. E. 117; St. Rep. 670, 65 N. E. 885; Braceville Coal State v. Gravett, 65 Ohio St. 289, 55 L. R. Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 37 A. 791, 87 Am. St. Rep. 605, 62 N. E. 325;

Am. St. Rep. 206, 35 N. E. 62; Ritchie v. Williams v. Donough, 65 Ohio St. 499, 56 People, 155 III. 98, 29 L. R. A. 79, 46 Am. L. R. A. 766, 63 N. E. 84; State v. Gard- St. Rep. 315, 40 N. E. 454; Fiske v. People, ner, 58 Ohio St. 599, 41 L. R. A. 689, 65 Am. 188 Ill. 200, 52 L. R. A. 291, 58 N. E. 985; St. Rep. 785, 51 N. E. 136; Atchison & N. People v. Gillson, 109 N. Y. 389, 4 Am. St. R. Co. v. Baty, 6 Neb. 37, 29 Am. Rep. 356: Rep. 465, 17 N. E. 343. Wilder v. Chicago & W. M. R. Co. 70 Mich. If an officer pleads the authority of an un382, 38 N. W. 289; Grand Rapids Chair Co. constitutional act for the nonperformance or v. Runnels, 77 Mich. 104, 43 N. W. 1006; violation of his duty, it will not prevent the Durkce v. Janesville, 28 Wis. 464, 9 Am. issuing of a writ of mandamus. Rep. 500; Holden v. James, 11 Mass. 396, Board of Liquidation v. McComb, 92 U. S. 6 Am. Dec. 174; Missouri v. Lewis (Bowman 532, 23 L. ed. 625; Davis v. Gray, 16 Wall. v. Lewis) 101 U. S. 22, 25 L. ed. 989; Bar- 220, 21 L. ed. 453; Osborn v. Bank of bier v. Connolly, 113 U. S. 27, 28 L. ed. United States, 9 Wheat. 859, 6 L. ed. 233; 923, 5 Sup. Ct. Rep. 357; Yick Wo v. Hop- Norton v. Shelby County, 118 U. S. 426, 30 kins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. L. ed. 178, 6 Sup. Ct. Rep. 1121. Rep. 1064; Gulf, C. & S. F. R. Co. v. Ellis, Courts and judges will be required by 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. mandamus to approve and accept bonds, as Rep. 255; Com. use of Titusville v. Clark, well as to perform other duties imposed up195 Pa. 634, 57 L. R. A. 348, 86 Am. St. on them by law. Rep. 694, 46 Atl. 286.

State er rel. Adamson v. Lafayette CounThe legislature has made a discrimina- ty, 41 Mo. 225; Beck v. Jackson, 43 Mo, 117; tion in favor of surety companies by act. Coats v. State, 133 Ind. 36, 32 N. E. 737 ; ually assuming to delegate to these compa- Boscly v. Woodruff County Court, 28 Ark. nies the power to determine what kind of a 306; State ex rel. Truesdell v. Plambeck, 36 bond or undertaking any party or officer, Neb. 401, 54 N. W. 667; Cox v. Rich, 24 other than the superintendent of insurance Kan. 20; Church v. United States, 13 Apr. and notaries public, and executors, admin: D. C. 264. istrators, guardians, trustees, and other fi- Jessrs. Goulder, Holding, & Masten, duciaries whose bonds do not exceed $2000 in for respondent: amount, shall be required to give. It is, The act does not violate the 14th Amendin effect, a delegation of legislative power to ment to the Federal Constitution. surety companies; and the Constitution and Barbier v. Connolly, 113 U. S. 27, 28 L. a wise public policy alike forbid the dele- ed. 923, 5 Sup. Ct. Rep. 357; Missouri P. gation of any such power to a private cor- R. Co. v. Humes, 115 U. S. 512, 29 L, ed. poration.

463, 6 Sup. Ct. Rep. 110; Lawton v. Steele, Harmon v. State, 66 Ohio St. 249, 58 L. 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. R. A. 618, 64 N. E. 117; People ex rel. Rep. 499; Addyston Pipe & Steel Co. v. Shumway v. Bennett, Mich. 451, 18 Am. United tes, 175 U. S. 211, 44 L. ed. 136, Rep. 107; Senate of Happy Home Clubs v. 20 Sup. Ct. Rep. 96. Alpena County, 99 Mich. 117, 23 L. R. A. The general assembly may make reasonable classification of the subjects to which tate, and she was ordered to give bond in legislation shall apply.

the sum of $200,000. The relator immediState v. Nelson, 52 Ohio St. 88, 26 L. R. ately tendered a bond in the required A. 317, 39 N. E. 22; Lawton v. Steele, 152 amount, but the probate judge refused to U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. accept it, solely on the ground that it was 499; Minot v. Winthrop, 162 Mass. 113, 26 signed by personal sureties, and not by a L. R. A. 259, 38 N. E. 512; Day v. Law- surety company, as required by the act of rence, 167 Mass. 371, 45 N. E. 751.

the general assembly entitled “An Act to The right to receive property is not an Amend § 3641c of the Revised Statutes of absolute one, to be enjoyed without the Ohio, Relating to the Giving of Surety imposition of any burdens upon the prop- Bonds,” passed April 20, 1904 (97 Ohio erty by the state, such as are reasonably Laws, 182). The probate judge was fully necessary for the general welfare and pro- satisfied that the bond was sufficient in every tection of the public and those interested other respect. The relator, therefore, in the estate.

prays for writ of mandamus commanding State ex rel. Schwartz v. Ferris, 53 Ohio the respondent, the probate judge, to apSt. 325, 30 L. R. A. 218, 41 N. E. 579. prove and accept the bond so tendered.

The propriety of regulating the giving The respondent answers that he did not acof bonds has been recognized in this state cept and approve said bond because the during its existence; and, if the evils which said statute provides that any administrahave resulted from the giving of personal | tor's bond in excess of $2,000 must be execusecurity in the large amounts have become ted and guaranteed by a surety company or known to the general assembly, as they companies authorized by the laws of Ohio have to every citizen of the state, why to guarantee the fidelity of persons holdshould it not be permitted, in the exercise ing places of public or private trust, unless of the discretion which it has, to attempt to the person required to give such bond shall cure those evils by placing needful safe- make affidavit that he has applied to such guards against loss to those whose proper- surety company or companies for such bond ty the law places in the hands of another, and has been refused or rejected; that the without being charged with attempting to bond offered by relator being in excess of create a favored class?

$2,000 and not being executed and guaranIf the subject-matter of legislation be not teed by such surety company or companies, prohibited by the Constitution, the provi- but by personal sureties, and no affidavit, sions of the law must be clearly unreason- as provided by law, having been filed, he was able before the courts will declare it invalid. prohibited by the aforesaid statute from

Sunbury & E. R. Co. v. Cooper, 33 Pa. accepting or approving said bond. To 283; Clark's Estate, 195 Pa. 524, 48 L. R. this answer the relator has filed a demurrer. A. 587, 46 Atl. 127.

It is insisted on behalf of the relator in It is competent for the legislature to support of the demurrer that this statute is decide as to what security shall be sufficient unconstitutional. in such cases.

The provisions of the act are so interdeJohnson v. Johnson, 88 Ky, 279, 11 S. W. pendent and interwoven that the whole act 5; Coleman v. Parrott, 11 Ky. L. Rep. 947, must stand or fall together. It provides 13 S. W. 525; Wallace v. Scoles, 6 Ohio, that the execution of all bonds for the faith429; Love v. Sheffelin, 7 Fla. 40; Tessier v. ful performance of official or fiduciary duCrowley, 17 Neb. 210, 22 N. W. 422. ties, or the faithful keeping, applying, or

The general assembly has power to pass accounting for funds or property, or for one laws for the conduct of the affairs of the or more of such purposes, with certain exoffices created and existing, to designate the ceptions, is thereby required to be by a sureduties of public officials and the manner in ty company or companies. We are therewhich they shall be performed, and, before fore not able clearly to perceive that the any person elected or appointed shall enter general assembly intended in any event to upon the performance of the trust, provide require bonds to be executed by a surety comfor the giving of bonds as security for the pany or companies in any one of the classes faithful performance according to the oath mentioned, to the exclusion of another. of office and the laws of the state.

This being so, if the statute is void as to State use of Knox County v. Blake, 2 administrators or other fiduciaries, it is void Ohio St. 147; Ex parte Buckley, 53 Ala. 42; as to public officers, and, if void as to pubSchuff v. Pflanz, 99 Ky. 97, 35 S. W. 279. lic officers, it is void as to fiduciaries, and

the contention here made as to the bond of Davis, J., delivered the opinion of the an administratrix involves as well the quescourt:

tion as to the validity of the bonds of pubThe relator, Jean D. McKell, was appoint- lic officers. ed administratrix of her late husband's es- Liberty to contract is one of the inaliena

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