
    PUBLICATION NOT AN ESSENTIAL PART OF A WILL.
    Common Pleas Court of Washington County.
    In re Will of Joseph L. Reckard, Deceased.
    Decided, January 19, 1914.
    
      Wills — Publication of, Not Required by Statute — Witnesses Need Not Know that the Document is a Will — Proof that the Testator Knew the Nature of the Instrument — Attestation Clause — Acknowledgment and Publication Distinguished.
    
    1. The statute of Ohio prescribing the formalities necessary to be observed in making a valid last will and testament does not contain any requirement that the will be published, and therefore no publication by the party making it is necessary.
    2. Publication not being specifically required by statute a witness in order to “attest” the will need not know either the contents of the instrument nor even that it is in fact a will.
    3. In order to probate the will the one offering it must prove that testator knew the nature of the instrument and realized that it was his last will and testament, but it is not necessary that this fact be known to or proved by the attesting and subscribing witnesses or either of them. It may be shown by any competent evidence.
    4. An attestation clause, containing affirmation that the will was “published,” etc., though advantageous; is no essential part of a will, not being required by statute, and the instrument may be well executed without containing any such clause.
    5. “Acknowledgment’’ and “publication” distinguished and Kehl v. Fuchter, 56 Ohio St., 424, and other cases commented on.
    
      Hancock & Noll, for appellants.
   Follett, J.

Appeal from probate court, which refused to probate will.

On August 25th, application was made to the Probate Court of Washington County for the probate of the will of Joseph L. Reckard, who died on March 10th, 1913. Probate was there refused upon the ground that one of the two witnesses thereto was not informed, and did not know, at the time he subscribed his name to the instrument, that it was a will. Upon the appeal to this court the evidence disclosed the same facts as in the court below, namely, that both witnesses saw the testator sign the instrument at the end thereof, and subscribed in his presence and in the presence of each other. The witnesses were .competent and the testator was of sound mind and memory. The sole question is therefore whether or not, in order that the will be properly “attested” in accordance with the laws of this state the witnesses must know that the instrument is a will.

It is unquestionably true that the witnesses need not know the contents of the instrument but it is contended that they must at least know that it is a will. Whether or not this contention is correct depends upon the requirements of the statute which details the formalities necessary to be observed in the execution of a valid will. Section 10505 of the General Code provides:.

‘ ‘ Except nuncupative wills, every last will and testament must be in writing, but may be handwritten or typewritten. Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge it.”

In spite of the syllabus of the case of Kehl v. Fuchter, 56 O. S., 424, which is to be taken as the decision of the court, but which is to be considered and applied in the light of the evidence and as limited thereby, it may be properly affirmed that none of the requirements of the statute include knowledge on the part of the witnesses that the instrument is a will unless it be the requirement that the will be “attested.” Is the requirement found in the use of that word ?

The word was first used in this connection in the Statute of Frauds (29 Car. 1103), which first made it essential that there be witnesses to a will. (See 10 Ohio, 462 at 464, and note in Cent. Ed.). It was adopted in the statute of the commonwealth of Massachusetts and from that statute followed in the one enacted in Ohio (1804 P. L., 173). Twenty years later it was first provided in Ohio that the. witnesses must have seen the testator subscribe his name or heard him acknowledge his signature. (22 O. S., 119, Par. 2.)

As stated by the court in the ease of Osborn v. Cook et al, 11 Cushing, 532:

“It is not easy to tracé the origin of the belief which, we are aware, is quite prevalent, of the necessity of some formal publication of a will, or declaration by the testator that the instrument is his last will and testament; but, as a question of principle or of authority, it is now settled, that such publication or declaration is unnecessary.” Unnecessary, that is, unless specifically required by statute. (40 Cyc., 1117; 30 Am. & Eng. Encl., 2d Ed., 587.)

The probable origin of the belief is in the decision of Lord Hardwicke in Rose v. Ewer, 3 Atk., 156, who apparently attempted to legislate the requirement into the statute because of his strong conviction of its value. In Moodie v. Reid (7 Taunt., 361; 2 E. C. L., 397), Gibbs, C. J., expressed a decided opinion that the publication was never an essential part of a valid will, either by custom at common law, or by the statutes of Hen. VIII nor Car. 11. The latter view became the settled law of England, the courts holding that it is not a question of what ought to be but what is. (Wright v. Wright, 7 Bing., 457; 20 E. C. L., 107).

But, while the misconception was early corrected and has entirely disappeared in England, we find numerous instances in the United States where it has entered into decisions and still exists in a somewhat indefinite way not only in other states but also in Ohio. The misconception seems to us to exist because of remarks made — often purely as obiter dicta — by the court in the decision of one ease being misapplied in another from a lack of clear and careful reasoning. In a very early ease in Massachusetts (Sweet et al v. Boardman [1804], 1 Mass., 257), in which the evidence disclosed the fact that the testator did not himself know the nature of the instrument which he was signing, in one of the three brief opinions, Sewall, J. says:

“I do not think that any particular ceremony of publication is necessary, or material, but the deceased ought at least to have known and understood that he was executing his will. There is no evidence that he had any idea of that being the fact; but, as far as the evidence goes, it proves the contrary.”

In the same ease Sedgwick, J., says:

‘ ‘ The statute does not expressly require publication, nor is there anything to be found in the books directly in point on the subject. But in my opinion, it ought at least to appear that the person knew he was executing his will, and that he communicated that fact to those who were called to attest the same as witnesses; and this is necessary to prevent imposition.” * * * [The italics are our own.]

It was fifty years before the doctrine contained in this .apparently superfluous observation of the court, and appearing in the latter part of the remarks of Judge Sedgwick, was repudiated by the Supreme Court of that state. A case similar to the one before us was presented to that court about 1856, namely, Osborn v. Cook et al, 11 Cushing, 532, and this gave the court its first opportunity to set at rest the doubt which existed in that state as to the necessity for knowledge by the witnesses of the nature of the instrument which they were called upon to witness, and the court in clear and emphatic terms states the law as follows:

“We think the requirements of the statute are met and satisfied. No formal publication of the instrument, no declaration of its contents, or of its nature, is in terms required. The Legislature have prescribed certain solemnities, to be observed in the execution of a will, that it may be seen that it is the free, conscious, intelligent act of the maker; but they have not prescribed that he should publish to the world or to the witnesses, what is in the will, or even that it is a will.”

This last case was followed and represents the now settled law of Massachusetts.

But during the half century, within which the case of Sweet v. Boardman was frequently cited and the opinions of the judges widely quoted as the law of Massachusetts, many of the courts throughout the country were misled, and thus the effect of the original error of Lord Hardwicke was perpetuated, and it will doubtless be many years before its influence ceases to exist. Notable among such decisions of that half century is that in the case of Swift v. Wiley (1840), 1 B. Monroe, 114 (Ky.); and the opinion of Robertson, C. J., has been extensively quoted throughout the country, as for instance in In Re Ludwig’s Estate (Minn.) 81 N. W., 758, and in Ohio in Rockel’s Complete Ohio Probate Practice, Vol. 1, p. 940, It is with the hope of hastening a complete removal of the error in this country that the historical aspect of the question is so extensively dealt with in this opinion.

Chief Justice Robertson says:

“As the statute requires two witnesses to the publication of a will disposing of real estate, the paper subscribed by the witnesses must, of course, be completed as a legal will at thé time of the attestation. To attest the publication of a paper as the last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses; subscription is the act of the hand. The one is mental, the other mechanical; and to attest the will is to know that it is published as such, and to certify the facts required to constitute an actual and legal publication, but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. There may be a perfect attestation, in fact, without subscription. ’ ’

The reasoning of the learned jurist is correct and the conclusion reached by him is unquestioned if his premise be true, viz., that “the statute requires two witnesses to the publication of the will”; and if the statute require publication then and then only does “attestation” require a knowledge on the part of the witnesses that the instrument is in fact a will.

The decision of Chief Justice Robertson has been widely quoted and apparently much misunderstood, for the courts which have quoted the decision with approval have apparently wholly failed to observe that the basis for the holding is the requirement of the statute, and that the holding does not apply in jurisdictions in which the statute does not specifically require a publication. Either the premise of the learned judge was wrong .and his entire reasoning based on a misstatement, and the opinion therefore valueless, or else the decision has no application in our state where neither a publication nor an attestation thereof is required by statute, as he said was required by that in Kentucky. In either event the decision is of no weight in Ohio.

“Attest” is to bear witness to; to certify; to affirm to be true or genuine; to signify by subscription that the signer has witnessed the execution of the particular instrument.” (Am. & Eng. Encl., Vol. 3, p. 274). “So, I conceive, the witnesses to a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence.” (Id. Foot-note 1.)

The whole question therefore is: Does the statute, as in New York and some other states, require publication as an essential part of the execution of a valid will? If so, then obviously no witness can truly “attest” the execution of a valid will unless he is informed that the paper is in fact a will. But publication is only necessary when expressly required by the statute (30 Am. & Eng. Encl., 587; 40 Cyc., 1117; Schouler on Wills [2d Ed.], p. 334, Section 326). Therefore we easily reach the conclusion that in Ohio, where no publication is expressly required by statute, none is necessary to the execution of a valid will, and so no one but the testator need know that the instrument is a will. And, if the Legislature has not seen fit to so require, it is not the province or right of the court to legislate for it. There are many reasons why a publication is an unwise requirement (Swineburne on Wills, 27). But, even if there were none, the courts would be powerless to add a requiremeut which does not either by common law or statute exist.

One must moreover carefully distinguish between a .“publication” and an “acknowledgment.” The latter is in Ohio essential when the witness does not see the testator subscribe, and then only. This distinction has not always been properly observed (40 Cyc., 1120; 8 O. Dec... 47; 8 O. N.P.[N.S.], 591; 2 O N.P.[N.S.], 199). One should remember also that an attestation clause though advantagepus, is no essential part of a will unless required by a statute, and that the instrument may be well executed without it {Id., Section 346, p. 367; 40 Cyc., 1125). Such a clause is almost invariably used, including the word “published,” and this may have something to do with the prevalent belief that publication is necessary.

In Ohio the ease of Kyle v. Fuchter et al, 56 Ohio St., 424, seems to have cast a doubt upon the proper construction of Section 10505. In that case the witness did not see testator subscribe, did not see the signature on the paper nor was he told by any one that it was there. He was wholly unable to “attest” an essential requirement, namely, that testator subscribed the will. ' He neither saw him subscribe or heard him acknowledge it (2 O. N.P.[N.S.], 195). The syllabus contains the unfortunate statement to the effect that “one essential * * * is that it shall have been acknowledged by the maker as his will, and his signature acknowledged, * * * ” but the opinion does not warrant such statement and we do not for a moment believe that the .able court ever intended to employ that unfortunate phraseology, but if we are wrong in this it is at least certain that no such acknowledgment is necessary when the witnesses saw the testator subscribe (8 O. Dec., 47). The court nowhere says that the will must be “published,” • but only that where the witness did not see the testator subscribe, the will must be acknowledged as well as the signature.

With even this doctrine we respectfully disagree, for the acknowledgment of the signature is a mere substitute for the observation of the witness of its subscription, and we believe that, as in Massachusetts, the court will at the first opportunity remove the existing doubt by the use of language which will not be misconstrued.- (See the able opinion of Geiger, J., in 8 O. N.P. [N.S.], 591.) True, the testator must know that it is a will and such fact must he established by the evidence in some way, but this does not require that the subscribing witness know that it is a will.

One eminent authority cites 42 W. L. B., 273, as also casting doubt in a similar way. Ye do not so consider it. The ease of Tims v. Tims et al, 14 C.C.(N.S.), 273, is directly opposed’ to the view of this court, and with all due respect to that court we find no sufficient reason for following its decision.

As stated in Allen v. Grifen, 35 N. W., 21 (Wis.) :

‘ ‘ This is a very old question both in England and this country, and with all due respect for the.learning and ability of counsel for the contestants, we think it very clehr that the great weight of authority is against the claim made by counsel.”

(See opinion in this case for further reasoning and for citation of authorities.)

The appeal will therefore be granted, and the paper writing ordered to be probated as the last will and testament of Joseph L. Reckard, deceased. Judgment may be taken accordingly.  