
    Lessee of Reynolds and Wife v. Abigail Shirley.
    A testator holding a paper in his hands says, this is my will, executed in 1824, I have called you to witness that it is my last will and testament; he then proposes that a certificate of this fact of reacknowledgment he written on the will, which is so written and acknowledged, and not signed by the' testator, but by the attesting witnesses. Held, a good republication, giving effect to the will from that time.
    This was an action of ejectment, in which a verdict was taken for the plaintiffs, subject to the opinion of the court, upon a motion for a new trial, on an agreed state of facts. It was adjourned for decision from the county of Huron.
    It was elaborately prepared and argued upon several points, but was finally decided upon the single point of fact as to the re-execution of a will by Abiathar Shirley, under which the *defendant claimed as devisee, whilst the plaintiffs claimed as heirs at law of the same Abiathar Shirley.
    The material facts of the case were these :
    Shirley had made and duly executed his last will and testament in 1834. By it he devised to the defendant certain specific real estate, and added this general clause, a All my other freehold estate whatsoever.” Shirley died in 1834, and the estate in controversy was obtained after the execution of the will. The proof of re-execution was to this effect.
    Shirley was attacked with cholera, on August 23, 1834. A witness testified that he was sent for by Shirley, on the same 23d of August; that he found Shirley sitting on his bed with the will in his hand; Shirley said to the witness, “This is my will; it was^ signed and witnessed in 1824, and 1 have called you to witness it is my last will and testament.” Arth. Goodin was also present. Shirley said, “ he supposed the will would be good enough without any further witness, but it would be well enough for witness and Mr. Goodin to write upon it and put their names to it to show it was his will.” Mr. Goodin wrote a certificate in these words: “This is to certify that the within is, as therein declared, my last will and testament, acknowledged before those whose names are hereto subscribed, this 23d day of August, 1834. “Subscribed as witnesses by W. Goodin and G. S. Haskins. The witness, Has-kins, states, that this certificate was read to Shirley, who said his name was already to the will, and requested Goodin and witness to sign the certificate, and they did so. The witness testified that Shirley was of sound mind at the time of this transaction. Probate of this will was granted in November, 1834.
    
      F. D. Parish, for plaintiffs,
    argued that the republication of a "will must be done in writing, executed with all the solemnities required in the execution of the original will. Otherwise, after-acquired lands are not affected. Powell on Devises, 264, alias 443 ; Roberts on Wills, 476, and onward; 7 Johns. 394; lb. 312; 3 Chase’s Stat. 1786, secs. 2, 5; Stat. of Frauds, 1 Chase’s Stat. 693; .29 Ohio L. 218, see. 4; Dow. 31-40. This is believed to be law in Europe and America, strictly adhered to since the existence of -the statute of frauds and prejuries in England.
    In the case before us, it is not, or at least it can not with any .propriety be claimed, that any new instrument has been thus executed. It is, therefore, difficult to imagine the ground *upon which the acknowledged ability and ingenuity of opposing counsel will succeed in making out a plausible defense. Certainly nothing transpired around the death-bed of the testator, which could, in any point of view, operate to alter, revoke, add to, or diminish from, the old will of 1824. Vide act relating to wills, sec. 5. If the old will had, from any cause, become dormant or, void, the most that can, with the least plausibility, be claimed is, that new life and effect was given to the will as it originally operated. No new or different effect can, upon any known principle, be claimed to have been given to-it. If such a will may be revived by parol, or even by a reaolmowledgment of it, by the testator in the presence of witnesses, who attest his declarations and re-acknowledgment of it, it could do no more than to restore the originial effect and operation of the will The very idea of the republication of a will, implies nothing further. Consequently, ■as before remarked, it does not in the least alter or change, diminish from or add to, the effect of the old will.
    But let it be supposed that the certificate drawn on the back of the will on August 23, 1834, had been then signed by the testator. There would have been still remaining several unanswerable objections to its passing the property in dispute.
    1. The certificate, in such a case, would have only given effect to the will as it originally stood. The language of the certificate is: “ This is to certify that the within is, as is therein described, my last will and testament,” etc. That is,, it would have been then, his will, that the Bloomingville property, “ together with ” all “the freehold estate” which the testator owned on December 18, 1834, should go to the defendant. No other intention could havo been legitimately deduced from the words of the certificate; and, no declarations of the testator, as to his intentions, could be introduced to control the import of the will or certificate, or to give-a meaning to the words used in either, which can not be reasonably collected from the words themselves. 8 Mass. 506; 1 Salk. 234. Nor can another paper be considered in giving construction to a will. 1 Salk. 231-234; 14 Johns. 1.
    Had the certificate been signed by the testator,, this case would have been in some degree similar to the one found in 2 Bos. & Pul. 500. In that ease it was decided that a codicil (not a mere certificate), in which the devise of all the testator’s freehold in the-original will was referred to by the *words, “ my said lands,” etc., could not operate to pass the estate acquired between the respective dates of the will and codicil. An intention to devise the-after-acquired lands can not be so fairly gathered from the words of the certificate in this case, as it could from those used in the codicil in the case referred to. For, in the one case, the bare use of the word “said” before “lands,” was held to confine the operation of the language of the original will to the lands owned by the testator at the date of the will; and in the other there would have been a mere reference to the words of the will; in effect saying, “ my will is still as is expressed in my will of 1824.”
    To make another digression from the case. If the declarations of the testator could be referred to as evidence of his intention, it would not improve the defendant’s case; for his words were of the same import. He said, “ it was my will in 1824, and it is myj will now,” etc.
    Had the certificate been signed, another objection would have been, that it does not appear that the witnesses subscribed their names in the presence of the testator. 29 Ohio L. 243, sec. 2; 1 P. Wms. 345.
    Boaltt, and Worcester, and Williams, for defendant,
    argued that the will was duly republished.
    The execution of a will, under our statute, as under the statute of frauds and perjuries, embraces the following formalities or solemnities: signing by the testator, attestation of witnesses, and publication. The re-execution of the will under our statute (if essential) as under the statute of frauds and perjuries, would require a-repetition of the .same formalities.
    
      Under the English statute (and so we apprehend under ours, if essential), the republication or re-execution of a will of lands, brings the will down to the date of the republication or re-execution, and applies the language of it to the real estate of the testator, in the same way that it would have been had it been originally executed on the day of the republication or re-execution. Jacob’s Law Diet. 438; 6 Com. Dig. 144, Eng. ed.; Roberts on Wills, 477; Powell on Dev. 686; Ram. on Wills, 165. As a concise view of this doctrine, in respect to the effect of a re-execution, and also in respect to what amounts to a re-execution, we will quote from Jacob’s Law Dictionary, 438, above cited :
    “A will, as to the disposition of land, and in some other cir-cumstances, *takes effect, or is hindered from so doing, according to its date. It is, therefore, necessary on certain occasions to renew'it, as it were, or in fact to make a new will; and if the testator is exactly of the same mind as to the method of the disposal of his property, and the circumstances only require that the will should bear date at any particular time, it will be sufficient for him to call in three proper witnesses, and before them declare the signature to be his handwriting, and use/Ae same forms as in the original execution, and the three witnesses must sign their names to such new will or republication, mentioning the date-thereof.” We find the same views expressed in almost, if not precisely the same language in Tomlin’s. Law Diet. 814, 815. And substantially the same in Powell, 686. See also Roberts on Wills, 481, in note.
    To apply the foregoing premises to the present case. On the night of August 23, 1834, when the witness, Haskins, entered the room of the testator, he found the testator sitting upon the side of his bed, with a paper in his hand, and the testator immediately addresses him by saying: “ I have not called you altogether for medical assistance, but to witness this paper. It is my will.” The witness did attest the instrument in pursuance of the request of the testator, and signed his name to it, together with Goodin, the other witness, as a witness, “ that it was the last will and testament” of the testator. It would be difficult to, conceive of a more unequivocal act of publication than the deposition of Haskins discloses. Attestation : Haskins testifies that both he and Goodin attested the will, and at the request of the testator. Goodin was not called at the trial. That the calling of Goodin, or more than •one witness in an action of the heir at law against the devisee is •unnecessary, see Espinasse, 291, 391. But an exception is taken to the attestation by counsel for plaintiff on the ground that Haskins does not testify that he subscribed the will in the “presence of the testator.” It is conceded that the deposition of Haskins does not disclose- the fact of his attesting the will in presence of the testator (in hcec verba). But we would ask, what is the presumption of law in this and similar cases? Presumptions, as we understand, are drawn from those facts that usually and ordinarily accompany, or are incident to a transaction as shown to us by experience. And does experience show us that when the maker of an instrument calls upon a by-stander to attest it as a witness, that the witness retires *to one side, and out of the view of the testator, for the purpose of complying with the request so made? To put the question, we think, is enough. Besides this, the witness testifies explicity,-that he was called upon by the testator to witness the will; that he did sign his name to the paper or will; that that was his, the testator’s, “ last will and testament.” We would ask again, whether Haskins could have so testified unless the law had been complied with in respect to the testator’s being present at the time of the subscription, and in respect to the attestation, omnia vite acta? No one, we think, can read the deposition of Has-kins without being led to the conclusion that the will was attested in the presence of the testator. Besides this, if our recollection serves us correctly, and we think it does, and that confidently, the same witness, Haskins, in his examination at the trial in the Supreme Court, testified expressly that it was so attested, and, we believe, it will so appear from the notes taken by the court at that time, to which we would invite their attention. If, however, after all, the court should be- of opinion that the attestation was not sufficiently proved, we would hope that they would not make a final decision of a case of so much importance, for the want of calling out a fact that clearly and assuredly escaped by inadvertence the attention of the counsel for defendant. And we do, therefore, if our case is deficient in this point, ask the benefit of a new trial; and as authority for which, we refer to Roberts on Wills, 142, in notes. Bond v. Seawill, 3 Burrows, 1773. How extremely liberal the English courts have’ been in respect to requiring the attestation to be made in the presence of the testator, see Roberts on Wills, 163-165; Jacob’s Law Dict. 427 ; Powell on Dev. 90, 91. Signing 
      
      ■of the testator: The term used in the statute of wills of Ohio, as in the statute of frauds and perjuries, is signed, as distinguished from subscribed. Our statute, as it is more liberal in other respects than the statute of frauds, so it is more liberal in respect to the signing of the testator. The statute of frauds requires the will to be signed in the presence of the witnesses: — ours makes an nchnowledgm ent of the signature to the witnesses sufficient. Ohio ■Statutes (of 1829), 243, sec. 2. If the will, or even the name of the testator, be written with his own hand, it is immaterial, under the English decisions, in what part of the will the signature ap•pears. It may be at the bottom, top, middle, or margin. 3 Starkie, 1684; 2 Black. *282; Com. Dig. 390; Powell, 61; Lemayne v. Stanley, Roberts on Wills, 138; Peate v. Oagly, on same page. The reason for this liberality of construction in respect to signing, we find concisely but clearly laid down in Powell on Dev. 66, in remarking upon the case of Lemayne v. Stanley.
    
      “ If,” says he, “ the intention to devise be certain, and the requisitions of the statute be verbally complied with, the law will imply an intention of the testator to conform to the statute, and by coupling the fact and intention, will give effect to the instrument.”
    The above decisions in respect to the signature of the testator ■coincide with, and confirm the universally admitted principle in respect to wills, that the intention of the testator is to be the guide •of the court, and that this rule applies as well to the execution of the will as to its construction. When the court have testimony that the testator himself considers his will as complete, they will so consider it, if the language of the statute be verbally complied with. 1 Saund, 279, in note; 3 Starkie, 1683. And parol evidence is admissible to show that the testator did consider his will as complete, .and contemplated no further act. 7 Bac. Abr. 328, 329. But when the testator did not consider his will as complete, and contemplated some further act, but was prevented by extreme weakness from performance, it has been held an insufficient execution, and parol .testimony may be introduced to show its insufficiency. As when the testator had signed three sheets of his will and attempted to .sign again but was unable, it was held insufficient. Right v. Price, Powell, 66. In respect to proof of signing by the tqstator, it has been repeatedly held, that acknowledgment of his signature by the testator to the witnesses is sufficient. 4 Dane, 502, 568 ; 2 Black. 282; 3 Com. Dig. 390; Powell on Dev. 61. So acknowledgment of the will before the witnesses is sufficient proof of the testators signature. 1 Chit. Index, 571; 1 Ves. 11, cited, White v. Trustees of British Museum, 2 Supplement to Petersdorf, 1069; Ellis v. Smith, 3 Cruise, 49. In the case now before us, the testator produced to the witnesses a will signed and executed in 1824, with his signature at the bottom of the will, as it stood there. When he first produced; it, he told them it was his will, thus recognizing his signature by acknowledging the will. *He said futher, that it was signed by him in 1824, that it was his will at that time, and he wished to have them attest it, to show that it was his will “ now." Immediately afterward a certificate of acknowledgment is written at the bottom,.at the request of the testator, for the purpose of showing, as he said, that it was his will at that time. He designed, as appears from the beginning, to add no new signature. He before considered his will complete, and he supposed it would operate according to the terms of it, without any new attestation,- but to “ make assurance doubly sure,” he requests the witnesses to re-attest it. After the certificate is written by the witness, it is read to the .testator.’ He, the testator, expresses his approbation-of the terms of it, and says to the witness, “ that will do.” He is then asked if he will sign it. He replies, “no, it is not necessary, my name is already to the will.” The witnesses then attest it, at the renewed request of the testator, “ that it was his last will and testament.” And Haskins says that they attested not the certificate and will severally, but both, and that he considered himself as called upon by the testator to witness both, and so considered when they signed. After the will is attested, it is handed to the testator, who hands it to his wife, and tells her to take care of it. Here is the strongest possible evidence that the testator considered his will “ complete,” and that he contemplated no further act. There is the proof of his signature by his acknowledgment of it, specifically to the witnesses, and also by his acknowledgment of the instrument as his will.
    But it is contended by the counsel for the plaintiff, that the'certificate, written by Goodin before attestation by himself and Has-kins, ought to have been signed by the testator, in order to make-file will operate upon the controverted lands.
    That certificate either is, or is not, a part of the will. If it is no-part of the will, it certainly required no signing by the testator. We think it was not a codicil. All the authorities assert that a. 
      codicil is a writing annexed to a will to add to, alter, expldin, or take something from it. 4 Dane’s Dig. 550; Bailey’s Law Diet. 425; 2 Black. 500; Powell on Dev. 23. The writing in question, leaves the will precisely as it was before. It is true that (if a re-execution or republication were necessary) the will now operates upon more property than it would have done before, because there happens to be other property for it to operate upon. But its *sense, taken as a whole, as an operative instrument, remains exactly as it was-before. We again quote in illustration of our views:
    
      “ In a republished will, it must be considered, what the words-of the will at the time of republication import; their sense can not be enlarged, but their operation may; if time or accident have increased the amount or number of particulars comprised within the compass of its expressions.” Roberts on Wills, 477. See also-notes on same page and page 478. Suppose the certificate had not been added, the case would then have come within the very letter of the doctrine laid down by Bayley, Tomlin, and other authorities above cited, in respect to the re-execution of wills.
    Again, suppose the certificate were an integral part of the will itself. It will be observed that both the will and certificate were written in the jfirst person. The will, as it stood before the certificate, is in the handwriting of the testator; the certificate was written by Goodin, at the request of the testator. The signature- “ Abiathar Shirley,” applies to the part that follows his name, with, the same grammatical propriety that it applies to the part which precedes. In this point of view, it conclusively and most unequivocally comes within all that numerous list of cases in which it has been decided that it was immaterial upon what part of the instrument the name of the testator is found. In this case, when the certificate was read to Shirley, he said in approbation of the terms of it, “ that will do,” and when asked to sign it, he replied,. “ no, it is unnecessary, my name is already to the will.”
    But again, suppose what -was written at the -bottom of the will should be considered strictly a codicil. A will, it is said, may be made at many different times. There may be twenty codicils written in as many different years, and if the last is executed with the proper formalities, it makes but one will. A will, like &■ deed, is an entirety. Roberts on Wills, 140-142, etc.; Dane’s Dig. 556; Powell on Dev. 6824.
    Suppose, Shirley had written his will in 1824, without having .any other signature to it than that which appears now on the first line of it, or without having sealed, attested, or published it till August 23, 1834, and that he then brought it before the witnesses, Goodin and Haskins, in that incomplete state, and the facts had then transpired that are attested by Haskins, the writing of the certificate at the request of the ^testator, his acknowledgment of his signature, and the attestation of the witnesses, we ■might then put the question with the utmost confidence of an affirmative answer. Whether these facts would not make out a ■good original execution of the instrument; and surely the position can not be less strong by reason of having Shirley’s name both at the top and foot of the will, and' having it twice attested.
    In fine, after an examination somewhat extended, in books of good, of doubtful, and of no authority, and after a careful perusal ..■and reperusal of the very learned, elaborate, logical, and even, eloquent argument of the counsel for the plaintiff, we are unable to find any reason for not considering this will, in every point of view that can be taken of it, validly and legally re-executed. We would, also, upon this point, refer the court to the argument •and opinion of Prof. Greenleaf, of the law school at Cambridgef Mass., filed herewith.
   Judge Wood,

after stating the whole case, delivered the opinion ■•of the court:

Upon the evidence, the court are satisfied that there was a complete re-execution of the will, under which the defendant claims, on August 23, 1834. It is not necessary the witnesses should see the testator sign the will; it is sufficient if he acknowledge his signature to the witnesses. The proof of this acknowledgment in the case before us, we hold to be clear and explicit. The will thus repirblished, speaks as to, and disposes of the real estate owned by the testator in 1834. The title is therefore in the defendant, and «there must be a judgment of nonsuit. ■  