
    Keyl et al. v. Feuchter et al.
    Wills— Validity of — Acknowledgment of signature.
    
    One essential to the admission of a paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, in the presence of the two subscribing witnesses.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Summit county.
    On February 4, 1880, one John Feuchter deposited with the probate judge of Summit county, a ipaper purporting to be his last will and testament. After the decease of Feuchter, which occurred in 1882, the probate judge opened the purported will, and it was produced for probate. The body of the paper was in due form as a will, and the attestation clause appeared as follows:
    “In witness whereof, I do hereunto set my hand and seal this 4th day of February, one thousand eight hundred and eighty.
    (Signed) “John Feuchter. (Seal.)
    “Signed and acknowledged by said John Feuchter as his last will and testament in our presence, and signed by us in his presence.
    “Charles Wilhelm, residence, Akron, Summit county, O, Thomas C. Brandon, residence, Akron, Summit county, Ohio.”
    The deceased left no widow, but left a son, Henry Feuchter, who was duly notified, and appeared at the hearing. Katharine Keyl, and others, plaintiffs in error, residing in Germany, next of kin, were not notified. A hearing was had and an order made, refusing to admit the paper writing to probate. Some months after, the plaintiffs in error, instituted a proceeding in that court for the purpose of obtaining probate of the alleged will. The application was refused. From this order an appeal was taken to the court of common pleas, and that court dismissed the appeal. This judgment of the common pleas was reversed by the circuit court and the case remanded to the common pleas for further proceedings. The judgment of the circuit court was affirmed by this court (48 Ohio St., 357), on the ground that the plaintiffs in error, having had no notice of the proceedings in the probate court, were not concluded thereby, and had the right to repropound the will.
    On the hearing in the court of common pleas, witnesses were called by whom it was shown that the signature, John Feuchter, to the alleged will was his genuine signature; that he was at the date of the same of full age, and of sound mind and memory; that the witness, Thomas C. Brandon, was deceased, and that the signature purporting to be his as a witness, was his genuine signature. The other witness to the paper, Charles Wilhelm, was produced and by him it was shown that John Feuchter, at the time witness signed the paper, was not under any restraint. The circumstances of the signing were testified to by him as follows:
    In chief. Question: I produce this paper which purports to be his last will and testament, and ask you, Mr. Wilhelm, whether that is your signature as witness, át the bottom of that paper? A. Yes, that is m37 name and signature.
    Q. Did 37ou see Feuchter on the day you made that signature? A. When I made the signature?
    Q. Yes, sir. A. WI137, I suppose so, yes.'
    Q. And where did you see him? A. Very7 likely at my place of business, at the packinghouse.
    Q. And do you remember of seeing- him there at the packing house? A. I suppose so, yes; I couldn’t say positive, but I think so, he was there.
    Q, And what did he come there for, if you know? A. Well, he came there to ask me to go with him and witness the paper, that is my recollection of it.
    Q. And did you go with him? A. Yes, sir.
    Q. Where did you go? A. My recollection is, that we went to the Harmonie Hall, to the Leopold block.
    Q. To the Leopold block? A. Yes, sir.
    Q. And to whose office, or to what place in the Harmonie Hall? A. To Squire Brandon’s office.
    Q. Did you know Squire Brandon? A. Oh, yes.
    Q. Now, after you got into Squire Brandon’s office, do you recollect what took place there? A. Yes. '
    Q. Well, what took place there? A. Well, I signed that paper.
    Q. Anything else? A. That is all I remember.
    Q. Who produced the paper? A. Well, my recollection is that Feuchter did; he asked me to witness it, and he produced it, and I signed it and left.
    Q. What did he say when he asked you to sign it? A. Well, he said nothing, except if I wouldn’t go with him and witness a paper, sign a paper, he said nothing at all.
    Q. Who else was there at the time besides you and Brandon and Feuchter? A. I could not tell. My recollection — I guess there was nobody there, but I couldn’t tell positive about that.
    
      Q. Do you know what was done with the paper after you signed it? A. No, sir. ■
    Q. Was he under any restraint at that time? A. Under what?
    Q. Under restraint. Was anybody forcing him, or urging him to sign the paper at the time? A. No, sir, I don’t know whether he was under any restraint or not; 1 don’t know as to that.
    Q. Did you hear anybody say anything to him? A. No, sir.-
    Q. Do you recollect anything about that? But you do recollect that he produced the paper, and asked you to sign it, and you did sign it? A. Yes, sir — never said nothing about a will, either.
    Q. Did he ask you to sign it as a witness? A. He told me to witness a paper for him, to witness some transaction.
    Q. Was his name signed to the paper at the-time he asked you to witness it? A. My recollection is there was no name there.
    Q. Well, have you any recollection on the subject? A. To the best of my recollection, 1 seen nothing; I didn’t look over the paper.
    Q. You didn’t look over it at all? A. Not to my recollection.
    Q. Now, do you mean to say that his name wasn’t there? A. I havn’t seen it.
    Q. Well, did you sign 3’our name when his name wasn’t there? Is that what you want us to understand? A. Yes, sir, I signed my name and didn’t see- his name at all — I thought I signed a lot that he sold, or something of that kind; he didn’t mention no will or nothing ; it didn’t make no more impression on me or nothing; never thoug’ht he made a will.
    
      Q. But you went there to sign as a witness? A. Yes, sir, to witness a paper.
    Q. And he brought out the paper himself, and asked you to sign as a witness? A. Yes.
    Q. Now, do you say that his name was not on that .paper at that time? A. My recollection is that it wasn’t there; I havn’t seen it anyway; it wasn’t shown to me, his name either.
    Q. Well, did you sign without looking at it at all? A. I expect so, yes.
    Q. How did you know you were not signing a note? A. I knew that.
    Q. Or signing a deed?' A. I knew that; I would sign most anything for John that way as a witness, because he was an intimate friend ; I knew exactly what the man was, he was an A No. 1 good man, an honest man.
    Q. And knew what he was about, did he not? A. Yes, sir, I suppose so, he knew what he was about.
    Q. Did you ever sign any other paper with him? A. Not to my recollection.
    Q. Did he ever come to your office at any other time and ask you to witness anything? A. Not to my recollection.
    Q. Don’t recollect? A. No.
    Q. Did he tell you where to sign your name?
    A. Not that I recollect; I suppose he said “here,” I do not know — I suppose he made the motion, I don’t recollect about that.
    Q. Did Brandon say anything-while you were there? A. There was not much said of anything-; I signed, I know, and I left — took me right from my work and went there and made signature and left. That is all I remember about it.
    Cross-examination: — Q. You say you supposed you signed á paper as a witness for the sale of some lot? A. That is what I supposed, yes, something of that sort.
    Q. Was he selling lots at the time — was that his business? A. Yes, he was engaged in selling lots, and selling his property and lots.
    Q. Well, had he any other business than that, taking care of his property in that way? A. Not that I know of.
    Q. He had a number of lots for sale, had he not, in your part of town, what we call Upper Town? A. Yes, sir.
    Q. And that is the paper you supposed you witnessed? A. I supposed I signed something of that kind, yes — because he came there.
    Q. You say that nothing was said about a will?
    A. No, sii’j nothing whatever; nothing.
    Q. If you had been advised at that time that that was a will that you were witnessing, would you have ascertained whether Mr. Feuchter was disinheriting his son, before signing as a witness? A. Yes.
    Q. Examine this paper produced by the other side and marked “Exhibit A.” Notice where John Feuchter’s name purports to be and where yours was signed, and express your judgment whether that name was there on the paper when you put yours here on the paper. A. Whether that name was here?
    Q. Yes, sir, whether the name John Feuchter was signed there when you signed yours as a witness or whether it wasn’t there. A. My attention was not called to this name.
    Q. Did you see, at the time you signed your name, the name of John Feuchter to that paper?
    
      A. I did not. My attention was not called to that name.
    Q. What do you now say is your best recollection, was Mr. Feuchter’s name to that paper when you signed it as a witness or not? A. My best recollection is, that my attention was not called to this at all, so I don’t know nothing about this.
    Q. Did you then know that John Feuchter had signed that paper that you witnessed? A. No, sir, I did not.
    Q. Did you see his name to that paper when you signed as a witness? A. No, sir, I did not.
    Q. Did anyone point out his. name to you as being on that paper when you signed as a witness? A. No, sir, nor did I see him sign it, either.
    Q. Was this clause read to you, before you signed as a witness, “Signed and acknowledged by said John Feuchter as his last will and testament in our presence, and signed by us in his presence?” Was that read o\rer to you before you signed it? A. If it had been, it would have made an impression on me.
    Q. ■ Well, therefore, what? A. Therefore, it wasn’t read to me; don’t know nothing- about this at all.
    Re-examination: — Did you sign a certificate, Mr. Wilhelm, that wasn’t true? A. What?
    Q. Did you sign a certificate that wasn’t true? A. What certificate do you mean? This that wasn’t true?
    Q. Yes. A. I don’t know whether it was true or not.
    Cross-examination: — Q. Did you know that you signed any certificate as I have just read to you? A. No, sir, I don’t recollect nothing of the kind at all.
    
      No other witness testified as to what occurred when Wilhelm signed the paper.
    The court refused to admit the alleged will to probate, finding that it had not been duly executed. A motion for a new trial was overruled, to which and to the order made, exception was duly entered. The testimony was all reduced to writing, in conformity to the statute. A bill of exceptions, containing all the testimony was taken, and duly allowed. The circuit court, on error, having affirmed the judgment and proceedings of the common pleas, this proceeding is brought to reverse both judgments.
    
      Baird cfc Voris and August IF. Bode, for plaintiffs in error.
    
      N. B. Tibbals, for defendants in error.
   By the Court.

The paper . writing was refused probate, on the ground that it had not been lawfully executed as a will. ,

Section 5914, Revised Statutes, which provides who may make a will, is as follows: “Any person of full age and of sound mind and memory, and not under restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament lawfully executed.”

Section 5916, which directs how a will shall be made, is as follows: “Every last will and testament (except nuncupative wills, hereinafter provided for) 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 or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.”

At the hearing of the case in the common pleas, it was shown that the alleged will in form, complied with the statute, and that at the date of its purported execution the maker was of full age, of sound mind and memory, and not under restraint.

One of the subscribing witnesses having deceased, his signature was duly proven. This had the effect in law of proof that the purported will had been duly acknowledged in the presence of that witness.

By the testimony . of the other witness, it was shown affirmatively that the alleged will was not executed and acknowledged in accordance with the statute, in that there was no acknowledgment by the maker, either of the paper as his will, or of his signature thereto, in the presence of that subscribing witness.

Upon the case as thus made by the propounders of the paper writing, the order of the court refusing- to admit it to' probate as the will of John Feuchter, was the only order which the facts warranted, and was, therefore, not erroneous. Raudebaugh v. Shelley, 6 Ohio St., 307; Haynes v. Haynes, 33 Ohio St., 598.

Judgment affirmed.  