
    *Peter Raudebaugh and wife v. Michael Shelley and others.
    It.is not essential to the due execution of a will that the witnesses thereto should attest the instrument at the same time, or in the presence of each other.
    Where an attesting witness to a will did not see the testator subscribe his name to the instrument, the acknowledgment of the fact by the testator in the hearing of the witness, which is requisite, is not required to be made in any particular words or any specified manner; but if, by signs, motions, con duet, or attending circumstances, the attesting witness is given to understand, by the testator, that he had already subscribed the paper as his will, it is a sufficient acknowledgment.
    The mode of proceeding to contest the validity of a will by bill in chancery, and the special or fictitious issue prescribed in the statute relating to wills, have not been abrogated by the provision in the statute regulating the jurisdiction of the probate court, passed since the enactment of the code, authorizing a proceeding to contest a will by petition to the court of common pleas, even though the latter remedy may be conducted in conformity with the provisions of the code.
    “Where, in a proceeding to contest the validity of a will on the application of the plaintiff, or without objection by him, the special issue is made up in the mode prescribed by the statute relating to wills, giving the affirmative-to the defendant, that party will be entitled to the opening and closing argument to the jury, on the well-settled rule of practice that the party having the affirmative of an issue is entitled to open and close the argument as well as the evidence.
    Petition in error to reverse the judgment of the district court of Wayne county.
    The original proceeding was a petition filed by the plaintiffs-against, the defendants in the court of common pleas of Wayne county, in March, 1854, to contest the validity of the last will and testament of Jacob Shelley, deceased, on the alleged ground of the ineompoteney of the testator, and undue influence exercised over-him by the defendant, ^Michael Shelley, the principal de- [808-visee under the will. The petition contained a prayer that an issue at law be made up to try the validity of the pretended will, and that the same-should be declared void, etc., and was duly verified by affidavit. At the September term of the court, 1854, an order-was made directing an issue at law to be made up between the-parties, to try the validity of the will, and directing that the defendant should file a declaration affirming the paper writing in question, to be the last will and testament of said Jacob Shelley, deceased; and that the plaintiffs should plead to said declaration, that the said paper writing was not the last will and testament of said Jacob Shelley, deceased. In compliance with this order, the-formal issue was made up by the declaration of the defendants, and. the plea of the plaintiffs. Subsequently and after a verdict and decree against the validity of the will, the cause was appealed to-the district court, where, at the June term thereof, 1855, the court ordered the cause to be tried on the issue made up in the common. pleas, and the case was accordingly tried and a verdict rendered in favor of the validity of the will; whereupon, after overruling a motion for a new trial, the court dismissed the petition at the ■plaintiffs’ costs.
    From the bill of exceptions taken by the plaintiffs it appears •that on the trial of the issue joined between the parties, the party .affirming the validity of the will to maintain the issue on his part, ■offered in evidence to the jury the writing mentioned in the pleadings, purporting to be the last will and testament of the said Jacob .Shelley, and also' offered in evidence the order of probate thereof.
    And the party denying the validity of the will called as a witness Jacob Espick one of the subscribing witnesses, who testified in substance that in the month of March or April A. d. 1851, Mi-:809] chael Shelley, a son of the testator, *and the residuary legatee in the alleged will, caiqe to the house of witness, who lived about a half a mile from where the testator lived, and ■said his father (the testator) wanted him. (the witness) to come and witness some writings. He said his father was sick and he, the son, appeared in a hurry. Witness found the old man in bed partly sitting up. After some' inquiries about his health, and some conversation between the old man and his son Michael, all of which witness did not hear, the old man directed “ Mike ” to get the key. Mike thereupon got .the key from some of the old man’s clothes, and got the paper from the chest and spread it out on the stand before the witness ; which stand stood at the head of the old man’s bed. The paper purported to be signed by the old man and by the other witness Stentz — by the old man on the right side, at the end of the paper, and by the witness Stentz on the left-hand side of the same page. Witness was not more than three feet from the old man, and when the paper was spread out and laid upon the stand he took it up and held it within two feet of the old man ■and asked him if that was the writing he wanted him to witness, and the old man replied it was.
    Witness then asked where he should sign his name, and either the old man or “Mike” answered, “under Stentz.” There was ■nothing further said about the paper by anybody.
    Mike took it up and put it back in the chest. There was nothing •said, at any time, about the nature or contents of the paper, nor was it called a will or anything else but a “ writing.” Witness supposed it was a will, but had no other reason for the supposition than that “Mike ” appeared in a hurry, and the old man was sick. The writing spoken of and produced at the trial was signed by the witness, in the presence of the testator, and at his request, in the manner above stated. The witness ^further said that he [310-did not know whether the old man knew the paper produced by “Mike” was his (the old man’s) will, otherwise than as may be-inferred from the facts above related. The witness further stated that there was nothing said by the old man about the signature, other than what has been hereinbefore stated. He did not in direct or express words declare the signature or the will to be his, nor was anything at all said about the old man’s signature, or about his having executed the writing, except what may be inferred from his act of presenting it to the witness, and requesting him to witness it. It was not subscribed by the testator in the presence of the witness ; and there was no other evidence offered by either party touching the acknowledgment of th.e pap.er or signature by the testator to this witness.
    It also appeared in evidence that the signature of the said Jacob Shelley to the will or writing was genuine, but was not subscribed in the presence of either of the attesting witnesses.
    But there was evidence tending to show that Stentz signed it as-a witness on the morning after it was written and signed by the testator, and several months before it was presented to the witnessEspick; and that at the time it was attested by Stentz, the old man expressly declared the signature to the will to be his, in words-audibly spoken. It also appeared in evidence that the witness Stentz, signed his name -as a witness to the will in the presence of the testator, and at his request.
    The parties having closed their piroofs and arguments, the court charged the jury, among other things, as follows : That in respiect to the acknowledgment to the witness by the testator of the execution of the will, it was not necessary that the pn-oof should show that the testator said in so many ioords that the signatnre was his- or that the ^writing was his will. That the law regarded the [811 substance rather than the manner of the act. • That the jury should consider what was done as well as what whs said. That they might judge from the whole transaction, as it was detailed to them in evidence, whether it was the intention of the old man to admit or make known to the witness that the instrument or writing which he was called to attest was executed by him and was his act; and' whether by what was said and done, he carried out that intention. That in this case, if the testator having duly signed the will in the absence of the witness, subsequently, for the purpose of having it-attested, produced it to the witness Espick with his own signature actually exposed to the view of the witness, and requested him to sign the “ writing ” as a witness, such conduct and request would constitute, under our statute, a sufficient acknowledgment to that witness of- the execution of the will by the testator.
    To which instruction and charge of the court, counsel for the party denying the validity of the will excepted, and the jury having returned a verdict in favor of the plaintiff to the issue, finding that the writing produced was the valid last will and testament of Jacob Shelley, deceased, the other parties to the issue moved the court for a new trial, for the reason that the court erred in matters of law in its said charge to the jury, and because the verdict was not sustained by the evidence; which motion the court overruled. To which rulings and instructions of the court the defendants to said issue excepted.
    It further appears from the bill of exceptions that the parties having closed their proof to the jury, the counsel for the defendants to the issue, who were the plaintiffs in the original petition, moved the court to be allowed to open and close the argument to the jury;, which motion the court overruled, and allowed the counsel for the 812] plaintiffs to the issue- — the party affirming the validity of the will — to open aud close the argument to the jury. To which rulings of the court, the counsel for the party denying the validity •of the will excepted.
    
      McSweny & Jones, and Given & Jeffries, for plaintiffs in error:
    The plaintiffs in error ought to have been allowed to open and close the argument of this case to the jury. 5 Ohio, 258; 16 Ib. 324; 4 Porter (Ind.), 297; 7 Pick. 98, 99; Powell on Dev. 70; 2 Atk. 56; 1 Curt. 637; 4 Mass. 395; 22 Maine, 438-441; 3 P. Wms 93; 8 Conn. 261; 3 Wash. C. C. 582. See notes in 1 Jarman on Wills, 72-75; 13 Ill. 19.
    The testator should have made known to Espick the character of the writing he was called to attest. Jarm. on Wills, 114, 115; 2 Greenl. Ev., sec. 675; White v. British Museum, 6 Bing. 310; 19 Eng. Com. Law, 91; Wright v. Wright, 7 Bing. 457; 20 Eng. Com. Law, 197, 198; Ray v. Walton, 2 A. K. Marsh. 71; 4 Kent’s Com. (5 ed.) 515, 516; Small v. Small, 4 Greenl. 220; 6 Wend. 330; 8 Paige, 491; 3 Phil. Ev. (5 vol. new ed.), Appendix, 450; 3 Mod. 262; 1 Eq. Cas. Ab. 403; Peate v. Ougley, Com. 197; 3 S. Ev 1635; 7 Taunt. 361; 1 Burr. 421; 2 A. K. Marsh. 73; 1 Mass. 258; 1 Rand. 159, 160; 2 Greenl. on Ev., sec. 675; 4 Kent’s Com. 515 516, and note; 1 Greenl., sec. 272; Walk. Am. Law, 353.
    The testator did not sign the writing in the presence of Espick, nor did he acknowledge the signature to the will to be his. The court should have charged this to be necessary. Phil. Ev. (App. to vol. 3, new ed.) 449; 2 Ves. 454, 457; 3 P. Wms. 53; 1 Ves. Jr. 11; 8 Ves. 504; 1 Ves. & Beame, 362; 5 B. Mon. 511; 1 Jarm. on Wills, 116, note 1; Hall v. Hall, 17 Pick. 373; 4 Kent’s *Com. [313 (5 ed.) 515, 516; 1 Met. 349; 4 Greenl. 220; 2 Hay. 232; 2 A. K. Marsh. 74; 7 Ohio, 48; 10 Met. 54; 3 Atk. 161; 1 Will, on Ex. 74-80; 2 Curt. 334; 3 Ib. 547, 607-611, 757, 172, 175, 563, 564; 7 Eng. Com. Law, 133, 509, 517, 578, 574, 462; 14 Eng. Com. Law, 596; 16 Jur. 1144; 13 Ib. 264; 7 Harr. Dig. 3, Suppl. 1647, 33; Eng. Law & Eq. 615, 618, 620; 10 Barb. 608; 16 Ib. 199.
    The witnesses to the will should have subscribed it as such at the same time. 1 Met. 349; 4 Kent (5 ed.), 515, 516; 2 Greenl. on Ev., sec. 676; 33 Eng. Law & Eq. 621; Jarm. on Wills, top page, 115-117; 3 Curb. 79, 243; 1 Greenl. on Ev. (4 ed.), sec. 272; 1 Burr. 421; 11 Barb. 124; 19 Barb. 448; Walk. Am. Law, 353.
    The following authorities were cited also by counsel for plaintiffs in error. 1 Denio, 33; 1 Kernan, 220; 2 Selden, 120; 2 Bradf. Sur. 163, 188; 3 Ib. 322; 10 Paige Ch. 85; 26 Wend. 328; 2 Harris, 86; 1 Greenl. on Ev., see. 472; 1 Barb. 533.
    
      E. & E. V. Dean, and Connell & Cox, for defendants in error:
    The testator sufficiently acknowledged the signature to the will to be his. 3 Curb. 607, 756, 563, 172; 2 Greenl. on Ev., 562, sec. 675; 6 Bing. 310; 5 Moore & Payne, 316; 1 Crompt. & Mees. 140; 1 Jarm. on Wills, 117, and cases cited; 2 Petersdorf, 1069; 7 Bing. 457; 1 Will, on Ex’rs. 73; 17 Pick. 373; 14 Eng. Law & Eq. 596; 26 Ib. 603.
    It is sufficient if the acknowledgment was made to each witneB's separately. 2 Greenl. on Ev., sec. 676; 4 Kent, 516. It was not necessary that the witnesses should attest the will in the presence of each other. 4 Kent, 516; 1 Ves. Jr. 11; 2 Ib. 454. Nor is it-necessary that the witnesses ^should be acquainted with the [314 contents of the paper they witness. 3 Curb. 607; 3 Moore & Payne, 686.
   Bartley, C. J.

-It is insisted that there is error in the proceedings of the district court upon the following grounds: 1. That the court erred in the instructions given to the jury; 2. In refusing to-grant a new trial on the ground that the evidence touching the execution of the will was insufficient; and, 3. In refusing to the plaintiff the right to open and close the argument of the case to the jury-

Three things were requisite to the due execution of this will:

1. That it should be in writing, and signed at the end thereof by the party making it, or by some other person in his presence, and by his express direction.

2. That it should have been attested and subscribed in the presence of the testator by two or more competent witnesses.

3. That the witnesses should have either seen the testator subscribe the paper, or heard him acknowledge the same.

The bill of exceptions loaves no ground for controversy as to the first requisite, inasmuch as it appeared in evidence that the signature of the testator at the end of the will was his genuine signature; and also that at the time the witness Stentz attested the instrument, the testator in express language declared the signature to the will to be his own. It appears that two competent persons subscribed their names to the paper as witnesses; and this, although done separately and at different times, was done in the presence of the testator. It was not necessary that the witnesses should attest the instrument in the presence of each other. Neither of the wit-315] nesses saw the testator subscribe his *name to the paper; one of them, however, heard him expressly acknowledge the same, but the other did not. And the question is presented whether the will is to be invalidated because the testator having subscribed the will in the absence of the witness, did not in express and direct language say to the witness that he had executed it, or sigped it as his last will and testament. It appears that the witness was called in to attest the paper without being informed expressly that the instrument was a will; and upon the paper being presented to him by the testator, with his (the testator’s) name written at the end of of it, he'subscribed his-name as a witness at the testator’s request.

It was not essential to the attestation that the witness should have been made acquainted with the particular contents of the instrument. Where an attesting witness does not see the testator subscribe his name to the will, the law requires that he should hoar the testator acknowledge the fact of his having subscribed it. This acknowledgment is not required to be made in any particular words, or in any particular manner. If, by signs, motions, conduct, or attending circumstances, the attesting witness was given to understand that the testator had already subscribed the paperas his will, it was a sufficient acknowledgment. And it was competent to show this fact by the circumstances attending the transaction, as well as by the words of the testator. Whether, in this case, the testator did substantially, and in effect, acknowledge, or give this attesting witness to understand, that he had put his signature to the paper as his will, was a question of fact for the jury to pass upon ; and and we do not discover any material error in the instructions of the court to the jury ; and, on the state of the evidence as it appears in the bill of exceptions, we do not think that the court erred in refusing to set aside the *verdict, and grant a new trial on [316 the ground of insufficiency of evidence.

Did the district court err in refusing to allow the plaintiffs the opening and closing argument to the jury ?

It is urged that the provision of the statute relating to wills, which authorized a proceeding to contest the validity of a will by “MU in chancery,” and a special or fictitious issue 11 in such suit in chancery,” giving the affirmative to the defendant, has been repealed. It is true that a subsequent statute relating to the jurisdiction of the probate court has authorized a proceeding to contest the validity of a will “ by petition to the court of common pleas,” but this statute does not provide for the repeal of the provisions of the former statute authorizing a proceeding by bill in chancery and special issue, in relation to the same subject-matter. The maxim, “ leges posteriores priores contrarias abrogant,” does not apply except where the inconsistency or repugnancy is' such that' the two provisions can not stand as cumulative or concurrent rules of action, so that the later statute by its necessary operation abrogates the former. Eepeals, by implication, are not favored, especially under our present constitution; and it is a well-settled rule of construction, applicable to all remedial laws, that where a new remedy or mode of proceeding is authorized, without an express repeal of a former one relating to the same matter, it is to be regarded as merely cumillative, creating a concurrent remedy and not as abrogating the former mode of procedure.

It bas been supposed by some that the special issue prescribed in the former mode of proceeding to contest a will, caused some unnecessary inconvenience and confusion by the reversal of the order ■of the parties, and also some undue advantage in regard to the actual 317] or real point in ^controversy, by giving the defendant in suit the affirmative, and that, therefore, the object of the provision in the late statute was to give a mode of proceeding in the contest of wills, which might be conducted in conformity to the code of civil procedure. And this conclusion is supposed to be strengthened from the consideration that the codeis entitled to a liberal construction; with an especial view to produce uniformity in the mode of procedure in all civil cases; but the 604th section of the code expressly provides that until the legislature shall otherwise provide, the provisions of the code shall not apply to sundry remedies named, including the proceedings to set aside a will. It is very true that this must be understood as affecting the operation of the code only as to its providing the sole or exclusive remedy, inasmuch as the same sections provides as to these excepted matters — “ but such proceedings may be prosecuted under the code whenever applicable." Now, although the act relating to the jurisdiction of the probate court was passed a few days .after the enactment of the code, and was required to take effect on the same day on which the code took effect, even if the proceeding .to contest the validity of a will, by petition to the court of common pleas under the probate act, may be conducted in conformity with •the mode of procedure prescribed by the code, it does not follow that the former remedy by bill in chancery and the special issue under it was repealed. If a new remedy and new mode of proceeding to contest a will was, therefore, authorized, even after the enactment of the express saving clause in the code, it does not follow that the former remedy and mode of proceeding, not expressly repealed by the probato act, were abrogated and not left to stand in full force as a concurrent remedy.

Besides this, the order for the special issue in the common pleas 318] was made at the instance of the plaintiffs themselves, *and they voluntarily plead to the declaration filed by the defendants; and the record further shows that the order of the district court that the special issue made up in the common pleas be re-tried before a jury, was on the motion of both parties. The plaintiffs, therefore, ■even if they could have objected at the proper time, did, in fact, waive all objection to the mode of proceeding, and it was not until after the evidence was closed on both sides that the application was made to the court to allow them the affirmative in the argument to the jury. The issue, as made and presented in the case at that ■stage of it, gave the defendants the affirmative; and it is well settled in practice that the party holding the affirmative of an issue, is entitled to open and close the argument as well as the evidence.

Judgment of the district court affirmed.

Swan, Brinkerhore, Bowen, and Scott, JJ., concurred.  