
    Haynes v. Haynes.
    3. "Where a will has been signed for the testator by another person, in his presence and by his express direction, in the absence of the attesting . witnesses, the acknowledgment of the fact by the testator in the hearing of the witnesses, which is requisite, is not required to he made in any particular form of words or any specified manner; but, if by signs, motions, conduct, or attending circumstances the attesting witnesses are given to understand, by the testator, that he acknowledges the signature thereto as his, and the instrument itself as his will, it is sufficient.
    2. It is not necessary, in addition to such an acknowledgment, that the testator should further acknowledge to each or both the attesting witnesses, that such signing was done in pursuance of his previous express authority and in his presence by the person signing for him.
    3. The fact of such signing and the authority to sign, when done in the absence of the attesting witnesses, may be shown by the acknowledgment to the witnesses, or by other competent testimony, or may be presumed from the facts and circumstances of the case.
    4. The due execution of a will can not he assumed in the face of positive evidence to the contrary, or in the absence of all proof on the subject, except, perhaps, in case of ancient wills, merely because it purports to be the will of the testator, and the attestation is in due form; yet it will not he defeated by the failure of memory cr corruption of the attesting witnesses, if it can be established by other competent testimony.
    5. The original will, when not lost or destroyed, and not a copy from the record in the probate court, used in the pleadings, should be produced to the jury in proceedings to contest its validity. Such will is the basis of inquiry, and the trial, verdict, and judgment should be responsive to the question, whether that paper be the last will of the testator or not.
    6. "Where in such copy a devise of lands reads : “eighty-six acres off the east side ” of a half section owned by the testator, and the original will reads: “west side ” instead of “ east side,” and the jury finds “ the paper writing produced” to be the will, and the court adjudges “the paper writing mentioned in the petition ” to be such will, the judgment does not follow the verdict, and the whole record leaves it uncertain what is the proper reading of the testator’s will.
    7. If, upon the face of the will, it is apparent that it has been altered in a material provision, and evidence is offered tending to show that such alteration was made since its execution, as well as to show that it was made before; it is the duty of the jury, in case the will is established, to determine the question in disputo, and establish the will as it read when executed.
    
      8. If it appears that such alteration was made before execution, then the paper writing, as it reads after such alteration, is the will; if made after such execution, and such alteration does not invalidate the instrument, then the jury should, by special verdict, establish the will as it read before such alteration.
    9. Proceedings to contest the validity of a will under the statute are in the nature of an appeal from the order of probate thereof, and all the material facts in issue, are to be heard and determined de novo as though such order of probate had not been made; except that such order of probate is prima facie evidence of the due attestation, execution, and validity of the will, and the burden of proof is on the contestants to invalidate it.
    Error to the District Court of Hocking county.
    The action below was to contest the will of Frederick Haynes, deceased.
    . On appeal to the district court, and upon a trial to a jury, the will was established. The plaintiffs in error were contestants, and upon their motion for a new trial being overruled, a bill of exceptions was taken.
    The errors complained of are: For refusing to charge as requested; for charge given; for admitting certain testimony ; for refusing to admit other testimony, and because the verdict is unsupported by the evidence.
    The verdict of the jury found the “issue joined” for the contestees, and “ that the paper writing produced is the last will,” etc. The judgment rendered thereon was: “ That the said paper writing mentioned in the plaintiff’s petition, and purporting to be the last will and testament of Frederick Haynes, and in and by the verdict of the jury so found to be the true and valid last will and testament of Frederick Haynes, deceased, be and the same is hereby adjudged and declared to be the true and valid last will and testament of Frederick Haynes, deceased.”
    The “issue joined” by the pleadings was Upon the allegations contesting the will on the ground that the testator was not of sound mind and memory, and that the will was induced by fraud and undue influence, but these were abandoned on the trial-, except as to the charge of fraud in inducing the testator to sign the paper under a belief that it contained other provisions not expressed-in it.
    Erom the charge of the eoúrt, which is given in full, we learn that the issues submitted to the jury as the issues then before them were:
    1. As to fraud on the testator.
    2. As to the due execution of the will.
    During the final trial, evidence was offered by the parties on these issues.
    Another question arose during this trial. It was then discovered that the original will, which was produced and in evidence, did not read as the copy in the pleadings did, in respect to a certain devise.
    In the will as it .then read was the word “ west,” while in the copy in the petition it read “ east,” in describing the lands divided among testator’s sons. The contestants offered evidence to show that since the former trial, the word “east” had been erased and the word “west” inserted ; on the other hand, the contestees offered evidence to show that the word liad been changed before execution of the will. That the word had originally been written east was conceded, and is apparent from an inspection of the paper, and the evidence offered was to show when the change was made and how the will read when executed. The testator owned the northwest quarter and the east half of section 8, and thirteen acres in section 9 lying east of the main tract. If the will read east and not west, eiglity-six acres would be undevised in any event, and the location of the several devises would be differently located than if it read west: while if it read west originally, all the land would be devised.
    
      Harrison, Olds $ Marsh, for plaintiff in error:
    I. “ The writing produced” was not signed by Frederick Haynes, deceased; his name was subscribed thereto by Jeremiah Hall; but such subscription was not made in the presence of the attesting witnesses. The instrument was not, therefore, executed in conformity with the second section of the wills act, and is invalid as a testament.
    1. We think it should be admitted, on all hands, that the general assembly, by the second section of the wills act (S. & C. 1616), have made at least four things essential to the proper execution and attestation of a will, and a want of conformity to any of these requisites will invalidate the instrument as a will. They are: 1. A subscription by the testator, or by some person in his presence or by his express direction, at the end of the will. 2. The making of such subscription, in the presence of each of the attesting witnesses, or by some person in his presence or by his express direction, or an acknowledgment of the maker of the same to the attesting witnesses. 3. A declaration by the testator, at the time of making or acknowledging the subscription, that the instrument so subscribed is his last will and testament; and 4. Two attesting witnesses must sign, at the end of the will, at the request and in the presence of the testator.
    2. But there are two ways of reading the last clause of the second section of the statute. The words are ambiguous. Hence there is room for construction. The mere grammatical meaning of the language will be controlled if necessary to make the statute sensible and reasonable.
    For the purposes of execution, wills are divisible into two classes: 1. Those which the testator himself subscribes; 2. Those which are subscribed by some other person in the presence of the testator and by his express direction.
    The object of requiring wills to be in writing is to prevent fraud and perjury. Now, it is obvious that if a person desiring to make a will, may direct any person to sign his will instead of signing it himself, and such other may sign at any time, and out of the presence of the attesting witnesses, but little has been done to prevent fraud and perjury in the execution and proof of wills so signed; and, in many instances, wills may be forged with impunity.
    The statute, in terms, requires such signing to be done, not only by the express direction of the testator, but in his presence. It must, therefore, it would seem, be done at the time of its adoption by the testator; for, to what other time can his adoption of the act be referred? We think it is, necessarily, referable to that time when it can, for the first time, be said, by the most favorable construction, to be the testator’s act.
    Our position, in short, is that the direction, by the testator, to sign his name, must be proven by two witnesses as a part of the act of execution of the will.
    In the case at bar, the name of Frederick Haynes was not affixed to the writing when the will was attested. It had been written before, when it contributed no more to the act of execution than if it had not been written at all. Here, then, we think, one of the cardinal requisites of the statute was disregarded. In such a case as this a subsequent acknowledgment is not sufficient. Such an acknowledgment is merely an act of adoption ; whereas, the statute requires that the acknowledgment, in such a case, must be of an act done. Where the testator signs himself, and he afterward acknowledges that fact, he does not adopt an act done by another. But where the signing is by another person, and is out of the presence of the attesting witnesses, and the testator subsequently acknowledges such signing, the acknowledgment is simply the adoption of the signing by another, and not of an act done by the testator himself. Dunlap v. Dunlap, 10 Watts, 153; Caveti’s Appeal, 8 W. & S. 25; 3 Curwen’s R. S. 1900, note to § 2, Wills Act.
    A signature consists both of the act of writing the party’s name and of the intention of thereby finally authenticating the instrument. Jackson v. Van Dusen, 5 Johns. 144; In re Feld, 3 Curt. Ec. R. 752; Sarah Miles’ Will, 4 Dana, 1.
    II. If the signing of the instrument by another person than the testator, and the direction to so sign may be done out of the presence and hearing of the attesting witnesses, there must at least be an acknowledgment to each of them, at the time of their act of attestation, that the subscription of the testator’s name was made in his presence and by his express direction. There was not, therefore, a legal acknowledgment of the subscription of the testator’s name to the writing in contest.
    According to the evidence of the attesting witnesses, the testator said no word to them, or either of them, concerning the signature to the writing in contest. On the contrary, he was entirely silent on the subject. But a will can not be made by silence; there must be a distinct, affirmative performance of all the statutory-requisites.
    Where the testator, at the time of the execution of his will, in the presence of the attesting witnesses, placed his finger on his name subscribed at the end of the will, and acknowledged that it was his last will and testament, but there was no evidence that he subscribed it in the presence of the attesting witnesses, or that he acknowledged in their presence that such subscription was made by him or by his direction, or in his presence, held that the will was not duly executed. Chaffee v. Baptist Missionary Society, 10 Paige, 85, 86.
    The subscription of the will must bema.de by the testator, in the presence of each of the attesting witnesses, or it must be acknowledged by him to have been so made, to each of the attesting witnesses, lb.
    
    The pr./visious of the statute of New York, under which the case cited arose, are, as the decision shows, the same in substance as the provisions of the wills act of Ohio, concerning the execution of wills. Lewis v. Lewis, 1 Kernan, 202.
    The case of Raudebaugh v. Shelley, 6 Ohio St. 307, is not in conflict with what we claim.
    III. The evidence established beyond a rational doubt, that a material alteration wras made in “the writing produced” after it was admitted to probate by the probate court. The verdict of the jury is therefore against the evideuce, and contrary to law.
    The jury were, no doubt, misled by the instructions of the court, that they had nothing to do with the alleged alteration of the will, and that they should not give that matter any attention or consideration.
    The issue which the jury were impaneled a.nd sworn to try was, whether “the writing produced” is the valid last will and testament of Frederick Haynes, deceased, or not.
    This wi’iting was the instrument which the proponents of it alleged was executed by the decedent. They put it, as well as the order of probate, in evidence.
    The issue was not whether the instrument, as recorded by the probate judge, is the valid last will of the decedent, but whether “ the writing produced ” as his last will was his valid will. If it had been altered in a material part subsequently to the order of probate, then it was not the will of the decedent. And the jury ought to have been instructed by the court accordingly. The court should have directed them, that, if they found that “ the writing produced” had been so altered, they must find that it was not the will of the decedent; but if they further found that “ the writing produced,” omitting the alteration, was executed and attested in conformity to the statute, as explained to them by the court, and that the decedent was of sound mind and memory, and not under any restraint, when the same was so executed, and that, as executed, it had been admitted to probate and record, then they must return such findings specially in their verdict.
    ¥e do not, of course, claim that the alteration invalidated the instrument, if it was, before the alteration was made, a valid will. What we do maintain is, that the proponents of the will were not entitled to produce the filtered instrument as the will of the deceased, and to insist or have a verdict, 'that, as so altered, the instrument was his will. The fact is, that “ the writing produced ” on the trial in the district court has never been admitted to probate; and the testimony clearly establishes that it ought not to be probated.
    Section 25 of the probate act (2 S. & C. 1216) provides that, when a petition to contest the validity of a will is filed, the will, testimony, and all papers relating thereto shall be transmitted by the probate judge to the court of common pleas, and the judgment of that court shall be certified by the clerk thereof to the probate court; and that when the case is finally determined, the will shall be deposited in the probate court. These provisions show that the instrument, which the jury in a contested case must be impaneled and sworn to try, is whether the writing produced in the first instance for probate in the probate court, is the last will and testament of the decedent. And that, in a case to contest a will, “the writing produced ” before the probate court as the will is one of the file papers in the case, and may, in any stage of the case, be referred to and used as such. On the trial of the issue, the proponents of the will must, we submit, offer it in evidence, as a necessary element or part of their case. Such is the uniform practice, so far as we know.
    In forming our opinion on this point, we have not overlooked the fact that section 22 of the wills act (2 S. & C. 1619), provides, that “ the order of probate shall be prim,a facie evidence, on the trial of said issue, of the due attestation, execution, and validity of said will.” But, it will be observed that the statute does not in terms, make the order of probate prima facie evidence of the contents of “ the writing produced” for, and admitted to, probate. If the legislature had intended that it should be, would they not, in express words, have declared such intention? But if the order of the probate be prima facie evidence of the contents, as well as the due attestation, execution, and validity of the alleged will, it would seem plain that where the proponents put in evidence, in opening their case, the alleged will as well as the order of probate, and the contents of the alleged will are materially different in one or more particulars from the copy of the writing produced for and admitted to probate, the proponents must explain the discrepancy by testimony, especially when such discrepancy occurs in a provision which the face of the alleged will shows was altered after it was originally written.
    
      ■ 2. The alteration materially ehauged the legal effect of one of the clevises in the will. But the will must stand and operate as made. It can not be reformed, either by the amending hand of the draughtsman, or the decree of a court of chancery. It is not the proper exercise of powers of that court to reform a will, to make it accord with the real intentions of the testator. Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Sherwood v. Sherwood (to appear in 44 Wis.), Kurtz v. Hibner, 50 Ills. 514; Miller v. Travers, 8 Bing. 244. Many authorities on this point were examined in Kurtz v. Hibner, 8 Am. R. 87.
    
      John S. JBrasse, also, for plaintiff in error:
    The testator owned four hundred and ninety-two acres of land, and it is clear, from the will, that he intended to give to each of his four sons one-fourth thereof; or one hundred and twenty-three acres, and he would have done so had the word “ east ” in the devise to Jacob been “ west.” But from the fraud or mistake which originated this difficulty, there can be no relief by way of construction ; there are no other words in the will from which any assistance can be obtained, nor can parol evidence be resorted to to correct the error or aid in the construction.
    All the cases upon the subject of the use of parol evidence to aid in the construction of a will, are collected in Judge Redfield’s note to the Illinois case of Kurtz v. Hibner, 10 Am. Law Reg., N. S. 93, and Judge Caton’s article on page 353 of the same publication.
    The evidence shows that the testator could not write his name, and did not, in fact, sign the will, but that his name was subscribed thereto in the handwriting of Mr. Hall. The clear weight of the evidence, also, is, that no direction was given by the testator to Hall, to so subscribe his name to the will, in the presence of the attesting witnesses, or either of them, and that the subscription was, in fact, made by Hall in the absence.of the witnesses ; and that the testator did not acknowledge to the witnesses, or either of them, that Hall had so written his name at his — the testator’s— direction.
    Upon this state of the evidence, we presented to the court certain requests, all of which were refused.
    These requests assume the law to be that this will was not properly executed, unless—
    1. The direction to sign was expressly given, and the signing done in the presence of both the subscribing witnesses ; or,
    2. The testator acknowledged to both or each of the attesting witnesses that his name had been written to the paper at his request and express direction.
    The statute (S. & C. 1616, § 2), provides that it is necessary to the due execution of a will that it 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.”
    Here arc two classes of cases provided for:
    1. When the testator subscribed his name. And, 2. When his name is written by another person.
    The Supreme Court has construed this statute, in a case where the testator subscribed his name. Raudebaugh v. Shelley, 6 Ohio St. 307.
    The district court, in its charge, made the construction of the statute given in that case to the first class of cases named in the statute, apply to the second class provided for therein. It elaborated the words “ in his presence, and by his express direction,” out of the statute, and the effect of the charge is that, in the opinion of that court, these words are useless and of no effect.
    These words have never been interpreted by .our Supreme Court, but have been considered by the Supreme Court of Pennsylvania, upon the wills act of that state, which contains the identical words. 10 Watts, 153 ; 8 Watts & S. 25.
    The other words of the statute, “ who' saw .the testator subscribe,” refer to both classes of cases; that is, they apply as well to a subscription of the testator’s name made by the hand of another, as to a subscription made by the testator’s own hand.
    
      And the other words of the statute, “ or heard him acknowledge to same,” must apply as well to the two classes of cases; for, of the two provisions, one furnishes a substitute for the other, and -if the first applies to more than one class of cases, the second must have as broad an application.
    The acknowledgment here provided for relates to the signature, and not to the will. It is not necessary that the attesting witnesses should know that the paper is a will; it is the signing they are required to attest.
    Now, if the witnesses were present and saw the testator sign his name to the paper, or heard him direct another person to sign his name, and that other person did so sub-, scribe the name in the presence of the testator, they “ saw the testator subscribe,” within the meaning of this statute; but if the witnesses did not see the testator so subscribe, but an acknowledgment is to be substituted for such actual knowledge on their part, the acknowledgment is less than equivalent for knowledge, unless it be, in the first case, that he, the testator, with his own hand made the signature, or, in the second case, that another person, naming him, wrote the name in his, the testator’s presence, and at his express direction.
    On the trial, the defendant offered in evidence the will and probate, and rested.
    The plaintiffs then proved, among other things, that the will had been altered since the probate, and offered evidence tending to prove that Hall knew it, if he was not the person who made the alteration.
    The plaintiffs also proved, by the attesting witnesses to the will, that no part of the will was written in the presence of either of them, and that the testator did not sign the will, nor acknowledge its signing, in the presence of either of them, and that the will was not signed by any other person in their presence.
    The defendants, in introducing their rebutting testimony, called Hall, and he was their only witness who spoke to the fact of the alleged alteration, or to the execution of the will, lie denied that he had altered the will since its probate, or that he knew of any alteration, but swore that what was claimed to have been an alteration was but his own correction, at the time, of an error he had made when writing the will. His testimony as to the execution of the will contradicted that of the attesting witnesses in material parts, and tended to disprove it.
    Upon this state of the evidence upon the alteration and execution of the will, the court charged the jury as follows:
    “ Something has been said about the alteration of the will since its probate. "With that you have nothing to do. You will give that matter no attention or consideration.”
    In this chai’ge there was error. The jury did have something to do with this alteration; they had the right to give ‘ the testimony on that subject attention and consideration.
    They were required to pass upon the question of execution ; they were required to find whether the facts and circumstances testified to by the attesting witnesses, or those testified to by Hall, attended the act of execution; and they were compelled to decide which was the most creditable— which to believe.
    
      Hall § Bostwick and S. Wélcly, for defendants in error.
   Johnson, Chief Judge.

We will consider the several questions made in the order they arose in the case.

As to the execution of the will. It was a conceded fact that the testator did not subscribe his own name to the paper, but that it was signed for him by one Jeremiah Hall, who wrote the will at testator’s instance.

Evidence was given by the attesting witnesses, tending to show that such signing was done before they came into the room, and that while they were present he neither signed the paper nor acknowledged the signature to be his, nor did he acknowledge in their presence that such signing by Hall for him was by his express direction or in his presence.

On the other hand, the evidence tended to show that it was signed for the testator by Hall, in his presence and by his express direction, and in the presence of the witnesses, who, at his request, attested the same in his presence.

Upon these aspects of the evidence, the plaintiff in error presented two propositions to be given in charge, which were refused:

1. That if the will was signed for the testator, in the absence of the attesting witnesses, by Hall, then the fact that it was so subscribed in the testator’s presence and by his' express direction, must be proved by the two attesting witnesses who heard the testator acknowledge such fact, or by two witnesses.

2. If it was so signed, it is not well executed unless the testator acknowledged to each and both of the attesting witnesses that Hall had so signed for him in his presence and by his express direction. In lieu thereof, the court charged as follows:

“ It is not necessary that any precise form of words should be used by the testator in acknowledging either his signature or will. It will be sufficient if, by signs, motions, conduct, or the attending circumstances, he gives the attesting witnesses to understand that he acknowledged the will and the signature to be his. If, therefore, you should find, from the evidence, that Mr. Haynes authorized Mr. Hall to sign his (Haynes’) name to the will when no other witness was present, and Hall did so sign the will in the presence of Mr. Haynes, and afterward, on the same day, Mr. Haynes, either by words, signs, motions, conduct, or the attending circumstances, gave the attesting witnesses to understand that he acknowledged the signature, and requested them to attest the will, and that they did so attest the will in his presence, this will be a sufficient acknowledgment and attestation of the signature, find your verdict should be for the defendants and the will.”

These requests, and the charge given, raise the question as to what constitutes the due subscription and acknowledgment of a will, when the attesting witnesses are not present and did not see the testator sign.

The second section of the wills act reads: “ Every last will and testament (except such as is mentioned in the seventy-fourth section of this act) shall be in writing and 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 and subscribed in the presence of such party by two competent witnesses, w'ho saw the testator subscribe, or heard him acknowledge the same.” [Note. — In Swan & Critchfield’s Statutes, the last words are, “ or heard him acknowledge to same,” but in the original roll and in Curwen, it reads “ the same.”]

Counsel claim that where the witnesses did not see the testator sign, then they must have heard him acknowledge all the facts requisite to such signing, and if the will was signed for him, that the acknowledgment must embrace the fact that he expressly authorized another person to sign for him; and that a general acknowledgment that such signature was his, and that he acknowledged the; paper so signed as his will, is not sufficient.

This view was rejected by the court below, and the raleas laid down in Raudebaugh v. Shelley et al., 6 Ohio St. 307, adopted.

That was the case of a testator signing himself in the> absence of a witness, while this is a case of signing By another. It was there held that the testator need not in, words expressly acknowledge such subscription, if bysign's,, motions, conduct, or attending circumstances, he gave-the.* attesting witnesses to understand that the signature' and' will were his.

To the same effect is Baskin v. Baskin, 36 N. Y. 416, where the testator produced a paper bearing his own signature, and requested the witnesses to attest it as-Ms ■ will. It was held a sufficient acknowledgment under the New York statute, which is like our own.

Nor is this in conflict with Chaffee v. Baptist Miss. Con., 10 Paige, 85, much relied on in this case. That was the case of a testatrix who could not write. The will, with her name signed to it, was produced by her to the witnesses, and putting her hand on the signature said: “I acknowledge this to be my last will and testament;” but she did not admit in the presence of the witnesses that she had subscribed her name to the will, or that it was her signature, or that it had been subscribed thereto by any other person by her direction, and there was no other evidence that she did so subscribe or acknowledge the signature to the will, and it was held insufficient, because merely calling the paper her will was not an acknowledgment of the signature to the will.

The distinction between these eases is, that in Raudebaugh v. Shelley and Baskin v. Baskin, the personal signature had been made, in the absence of the witnesses, an acknowledgment of the signature as his, to the witnesses, and of the paper as his will, is sufficient; while in the Chaffer case, if signed by another, in the absence of the witnesses, the mere publication of the will as his, without any acknowledgment of the signature, can not be deemed an acknowledgment of the unseen subscription made by his direction.

The subscription by the testator, either in person or by another, by his express direction, in his presence, and the publication of the same, are independent facts, each of which is essential to the due execution of the instrument, but it by no means follows, that a will must fail if the attesting witnesses did not remember all that passed at the time that it was acknowledged, or that other evidence can not be adduced to establish the will.

In Chaffer v. Baptist M. C., 10 Paige, it was held: “ that the facts may be implied or shown from circumstances, or the testimony of other witnesses, w-hen the attesting witnesses fail, to recollect what did occur, or even when they testify that important requirements were not complied with. Duckwall v. Weaver, 5 Ohio, 13; Bennet v. Sharp, 33 E. L. & Eq. 618.

In Adams v. Field, 21 Vt. 256, where the will was written by another, beginning,: “I, A. B.” etc., if the testator acknowledged it to be his will, in the presence of the witnesses, and desire them to attest it as such, it will be sufficient under the common law rule that did not require the will to be signed at the end, if signed in the body of the-paper. Here the signature in the body of the will, written by another, was held to be the testator’s signature if so acknowledged by him to be his.

So in Sarah Mills’ Will, 4 Dana, 1, where ‘the will was drawn by a neighbor, with her name in the body of the instrument, as I, Sarah Miles,” etc., and read to and approved by her in the presence of witnesses as her will, and as such attested. She failing to sign for want of strength; it was held a sufficient signing and acknowledgment under the Kentucky statute, which, like the English statute of frauds, did not require a signing at the end of the will. We cite these cases to show that a signature by another may be sufficiently acknowledged to the attesting witnesses, without repeating to them, that the same was made by express direction. In the last case, Robertson, C. J., says : “ The fact that the testator wrote his own name can not be material, because the statute only requires that it should be signed by himself or by some other person with his authority; and it has been often decided that the mark of an illiterate testator, or his acknowledgment of his signature, written by another, may be a sufficient signing in the case of a will as in other analogous eases.”

Whether, in the absence of all evidence tending to show that such previous signing by another, for the testator, was by his express direction and in his presence, a mere acknowledgment of the will and signature, to the witnesses, would be sufficient; or whether, in case of such a signature without express authority, it could be adopted in the presence of the witnesses, we need not now determine, as they are abstract questions not raised by the evidence.

The fourth request, as here mentioned, embodies the point actually involved; that is, if Hall signed for the testator, in his presence, by his express direction, bat in the absence of the attesting witnesses, it is not properly executed, unless the testator acknowledged to each and both of them, that Hall signed for him by his express direction and in his presence.

That is to say, that although such express authority to sign, and such signing be proved by other competent testimony, yet the will must fail, unless the acknowledgment was made to the witnesses, not only that the signature was his, but also acknowledge that he had, previous to such signing, expressly authorized Hall to sign for him, and that he had done-so in his presence.

In this we do not concur. The Raudebaugh case decides, that when the testator himself signs in the absence of the witnesses, he need not acknowledge by words or in any particular form, but may do so by signs, motions, or conduct. The same rule applies to a signing by another in the absence of the witnesses, otherwise one who had lost the power of speech, though in possession of all his other faculties, could not acknowledge a will previously signed for him by another by his express direction and in his presence., We agree with the court below, that such an acknowledgment is sufficient, if made by signs, motions, conduct, or attending circumstances, and is understood as affirming the signature and will to be his.

We also agree with counsel, that mere silence is not enough. The testator must, in some way, acknowledge and publish the paper as his will.

Upon a careful review of the case and the authorities, we conclude:

1. That, if a will is subscribed by the testator, or for him by another, in his presence and by his express direction but in the absence of the attesting witnesses, the will, and the subscription to tbe same, must be acknowledged by the testator to the attesting witnesses.

2. That in making such acknowledgment it is not necessary that the testator should acknowledge to each or both of said witnesses, the fact that Hall had signed for him at his request and by his express direction, if, by words or otherwise, he gave the witnesses to understand that the' signature and the will were his, and then had it attested as such by the witnesses, in his presence.

8. That tbe signing of a will is one step in its execution, and when done in the absence of the attesting witnesses, either by the testator or for him by another, the fact of, such signing and the authority to sign may be shown by any competent witnesses, or by facts and circumstances which raise the presumption of such execution, as well as by the acknowledgment of the attesting witnesses.

4. That, while the due execution of a will can not be assumed in the face of positive evidence to the contrary, merely because it has been signed and attested in due form, yet mere failure of the attesting witnesses, or their denial of the facts, will not defeat it if it can be established by other evidence.

Neither failure of memory, nor the corrupt or false swearing of attesting witnesses will be allowed to defeat the will, if its due execution can be shown by other testimony. 3 Redfield on Wills, ch. 1, § 3, p. 9; Clark v. Dunnavant, 10 Leigh, 13; 1 Redfield on Wills, ch. 4, § 19, p. 22; Dean v. Dean, 27 Vt. 746; Elliott v. Elliott, 10 Allen, 357; Lawyer v. Smith, 8 Mich. 411; Tilden v. Tilden, 13 Gray, 110; Ella v. Edwards, 16 Gray, 91; Dewey v. Dewey, 1 Metc. 849; Chaffee v. Bap. Miss. Con., 10 Paige, 85; Adams v. Field, 21 Vt. 256; Bowman v. Christman, 4 Wend. 277; 2 Phill. on Ev., 935, note; Kirk v. Carr, 54 Penn. St. 285.

This last was the case of a will, signed by another, and admitted to probate. It was held that the prima facie case of due execution could not be overcome by one of the attesting witnesses swearing that he did not recollect that the testatrix requested her name to be signed by another.

During the trial to a jury in the district court, upon appeal, it was charged by the contestants, that the original will which had been transmitted by the probate court to «the common pleas, and which had been used in the former trial, had been altered since such trial, and evidence « as given tending to support that charge, and also on the other hand to show that it was made before the execution o'f the will.

The alleged alteration consisted of changing the word “east” to “west” in the devise of real estate, which materially changed the nature, location, and extent of the devises of real estate.

In the general charge, the court said: “Something has been said about an alteration of the will since its probate. ’With that you have nothing to do. You will give that matter no attention or consideration.”

A general exception to the whole charge was noted, but none to this proposition in particular.

As the bill of exceptions purports to contain all the evidence and charge of the court, and one of the grounds for a new trial was, that the verdict is against the evidence and not supported thereby, the court will look to the whole charge in connection with the evidence, with a view of determining whether, under all the facts and circumstances of the case, substantial justice has been done, or whether a new trial should have been granted. M. & C. R. R. Co. v. Strader, 29 Ohio St. 448.

■The effect of such charge will therefore be considered under the point.

8. That the verdict is against the evidence and unsupported thereby.

Under this head, we will not discuss the evidence at length. It is enough to say, that upon the question of a due execution of the paper, as a will, we are of opinion, the verdict was fully warranted, notwithstanding the infirmity of memory of the attesting witness, after the lapse of so many years.

The question still remains, is the verdict and judgment warranted, in view of the evidence and charge of the court on the subject of when the will was altered, and the effect of such alteration. True it is, as stated by the court below, that an alteration of the will, after its probate, can not invalidate it, and yet we think that this remark, taken in connection with the issue before the jury, and the evidence as to when the word east was changed to west, was calculated to mislead the jury.

The jury must ascertain and find out whether “ the writing produced” was the valid will of the testator or not. This writing, is the original will transmitted by the probate judge to the court, as required by statute.

In determining whether this paper was the last will of Frederick Haynes, the jury were called on to determine not only the capacity of the testator to make a will, and its due execution, but also, the equally important fact of identifying the paper and its provisions as such will.

If they find that the paper writing produced was duly executed as a will by one competent to make one, and it is apparent upon its face, that material words in it have sometime been altered, then it is a material inquiry, if the paper is challenged on that ground, as to wheu the change was made. If before execution, then the paper as it reads is such will; if afterward, it is not such will as it reads by reason of the alteration, and the jury should, by special verdict, have passed upon this question. In the present ease it is apparent, from an inspection of the paper, that the word in dispute was originally written “ east,” and had been changed to “ west.” Defendants in error offered proof to show the change was made while writing, and before execution, and plaintiffs in error offered proof to show it was so altered since probate.

The jury were instructed to disregard this evidence. In this there was error. If the word had been changed before execution, then the writing produced was the last will, but if after, it was not, and the jury erred in establishing it in its altered condition. Such subsequent alteration would not necessarily invalidate the instrument, for that depends on other considerations and facts not disclosed in this case, but it would prevent the establishment of the will in the changed form in which it is produced to the jury.

Unless this alteration was made under such circumstances, as invalidates the instrument, the jury must establish the will as it read when executed. If the paper was a valid will with the word east instead of west in it, then it should be so established.

The verdict of the jury establishes the will produced before them, reading west and not east. The judgment is, that the “ will mentioned in the petition,” with the "word east and not ivest, was adjudged to be the last will. This inconsistency between the verdict and judgment, as to the proper reading of the paper, renders it uncertain what are the provisions of the will established in this regard.

The real question was, in view of this controversy, how did the will read in this respect, when it was executed, and not how it was recorded nor how it now reads.

In a collateral proceeding the record of probate might probably be regarded as final and conclusive; but in a contest under the statute, such is not the case, for it is the will itself, and not the probate record, nor a copy thereof, that is to.be produced; and this probated will, with the papers attached, makes a prima facie ease for the paper as it reads, and until it is shown that it has been altered since execution.

The proceedings to contest a probated will are in the nature of an appeal from the order of probate. All questions are to be heard and determined de novo, as upon appeal, the probate proceeding making a prima facie case in favor of the writing produced.

Under what circumstances a material alteration, purposely made by one to be benefited thereby, would invalidate the instrument, in whole or in part, is a question we have not considered, as it is not in the case. The conclusion reached renders it unnecessary to determine the other questions made on the record.

We only add, without comment, a reference to some authorities bearing on the point considered. In re Wilson, 8 Wise, 171; Jackson ex dem. Malin v. Malin, 15 Johns. 293; Pigot’s case, 11 Coke, 26; Master v. Miller, 1 Smith’s L. Cas., pt. 11, p. 1254, and notes; Wikoff’s Appeal, 15 Penn. St. 281; L'Fit v. L'Batt, 1 P. Wms. 526; 3 Redfield on Wills, ch. 1, § 5; 1 Williams on Ex’rs (6 Amer. ed.), 167-172.

Judgment reversed, and cause remanded to the district court for a new trial.  