
    Baker v. Baker et al.
    
      Testamentary instruments — Position of signature.
    
    Where a testator, in what purports to be his last will and testament, appoints his sister-in-law executrix thereof, and before he signs the instrument, writes thereon after the attestation clause the words: “ My sister-in-law is not required to give bond when probated;” and thereafter, in the presence of the subscribing witnesses, signs the instrument above those words, it will be a signing by the testator at the end thereof, as required by section 5916 of the Revised Statutes.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Fairfield county.
    On June 19, 1883, Elias T. Baker, of Amanda township, in the county of Fairfield, Ohio, executed his last will and testament. The tenth and last item, and the attestation clause of the paper writing purporting to be such last will and testament, with certain words written thereon under the names of the attesting witnesses, read as follows:
    “Tenth Item. In testimony whereof, I, the above named Elias T. Baker, have hereunto set my hand and seal this 19th day of June, A. D. 1883, one thousand eight hundred and eighty three.
    Elias Thomas Baker, [seal.]
    
      ‘ ‘Signed, sealed and acknowledged by the aforesaid E. T. Baker, as his last will and testament, in our hearing’ and presence, and at his request by us signed in his presence as subscribing witnesses thereto.
    “Andrew Hutci-iins,
    “Amos Hutchins.
    “My sister-in-law is not required to give bond when probated. ”
    In December, 1886, this will was, by the probate court of Fairfield county, admitted to probate.
    In December, 1887, William C. Baker, the plaintiff in error, commenced his action in the 'Court of common pleas, in said county, against Philip Baker and others, the defendants in error, for the purpose of setting’ the will aside.
    Evidence was introduced on the trial before the jury tending to prove that at the time the will was executed, it had written thereon, and below the place where the testator and witnesses signed, the above mentioned words: “My sister-in-law is not required to give bond when probated. ’ ’
    When the evidence was concluded, the plaintiff, William C. Baker, asked the court to give to the jury, as separate instructions, each of the following’ eharg’es, to-wit:
    “No. 1. Every last will and testament shall be in writing and signed at the end thereof, and unless you find that the paper writing purporting to be the last will and testament of Elias Thomas Baker, deceased, was signed by him at the end thereof, your verdict will be against the will.
    “No. 2. If you find that said Elias Thomas Baker, after he had written his will, and before the same was executed, wrote on said paper the words: ‘‘My sister-in-law is not required to give bond when probated,” as a part of said will, and thereafter, in the presence of the witnesses to said will, produced said paper on which said words, viz.: “My sister-in-law is not required to give bond when probated” remained, and declared that the same was his last will and testament, and signed the said paper above said words: “My sister-in-law is not required to give bond when probated,” then the same is not signed at the end thereof, and your verdict should be for the plaintiff, and that the said paper writing is not the last will and testament of said Elias Thomas Baker.
    “No. 3. If you find that the words: “My sister-in-law is not required to give bond when probated” were written by said Elias Thomas Baker upon the paper purporting to be his last will and testament before the same was signed by him, and remained thereon when the same was signed, and that the said Elias Thomas Baker signed said paper above said words, then the said will is not signed at the end thereof and is not executed according to law and your verdict should be that the said paper writing is not the last will and testament of said Elias Thomas Baker.
    “And the court refused to give said second and third requests, and separate charges marked No. 2 and No. 3, to the jury, to which said refusals and each and every one of them the plaintiff, at the time, excepted, and thereupon the court charged the jury as follows:
    “No. 1. Every last will and testament shall be in writing and signed ■ at the end thereof, and unless you find that the paper writing purporting to be the last will and testament of Elias Thomas Baker, deceased, was signed by him at the end thereof, your verdict will be against the will.
    “No. 2. Upon the question of the due execution of this paper writing, in so far as the law requires that in order to constitute it a valid will it must 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,
    I charge you that the law is that before you can find this paper to have been duly executed, you must, find that the testator signed the same himself, or that it was signed in his presence, by his express direction, at the end thereof; that is to say, after and in reasonable proximity to the last clause.
    “If, however, you shall find that the testator, after he had written this paper, and before he signed and the same was executed, wrote at the end thereof the words: “My sister-in-law is not required to give bond when probated,” and thereafter in the presence of the witnesses signed said paper above the words: “My sister-in-law is not required to give bond when probated,” it is a signing by said testator of said paper writing at the end thereof and a compliance with the statute in that respect.
    “To the second of which said charges and instructions of the court to the jury, said plaintiffs at the time excepted. ’ ’
    The trial of the cause resulted in a verdict sustaining the will.
    The plaintiff thereupon filed his motion for a new trial, which was overruled, to which the plaintiff excepted. The court rendered judgment in accordance with the verdict, to which the plaintiff excepted and tendered a bill of exceptions, embodying all the evidence adduced at the trial by the parties, which was allowed, signed and sealed, and made part of the record.
    On petition in error by the plaintiff, the circuit court affirmed the judgment of the court of common pleas, and this proceeding in error is prosecuted to reverse the judgment of the circuit court.
    
      C. W. McCleery and William Davidson, for plaintiff in error.
    
      C. D. Martin and Samuel W. Courtright, for defendants in error.
   Dickman, C. J.

Upon exception to a portion of the charge of the court as given to the jury and the refusal of the court to give certain instructions to the jury as requested, the question arises, was the last will and testament of Elias T. Baker executed in accordance with statutory requirement? It is provided by section 5916 of the Revised Statutes of Ohio that: -“Every last will and testament (except nuncupative wills hereafter provided for), shall be in writing, and sig'ned at the end thereof by the party making the same, or by some other person in his presence and by his express direction. ” A similar requirement that the signature of the testator should be at the end of the will is found in the statutes of several other American states. Under the English statute of frauds, the testator’s signature might be made in any part of the will. But the statute, 1 Viet., c. 26, as amended, introduced the condition that the signature of the testator must be somewhere near the end of the will, and so as not to be immediately over or preceding any of the dispositive parts of the instrument; and further provided that no signature should be operative to give effect to any disposition or direction which might be underneath or following it. It is the obvious and generally recognized object of the legislature, in requiring a testamentary paper to be signed at the foot or end thereof, to prevent the possibility of fraudulent interpolation between the will and the signature of the testator after execution.

In Turner v. Scott, 51 Penn. St., 126, it is said that the essence of the definition of a will is that it is a disposition of property to take effect after death. A law, therefore, that requires the testator to sign his last will and testament at the end thereof would preclude the idea of making a valid testamentary disposition of property below the executing signatures, without the formality of an additional signing- by the testator and a proper attestation thereof. While, however, the dispositive part of a testamentary instrument should be above or precede the signature of the testator, words or clauses written before the will is executed and below the place where the testator and witnesses signed may be excluded from probate, and yet not invalidate the entire instrument.

It would be difficult, if not impossible, to lay down a general rule which would embrace the suggestions and requests of the testator' that may, before the execution of the will, be written beneath the place where the names of the testator and of the attesting witnesses are afterwards subscribed, without affecting the validity of the instrument. Each case as it arises will present its own controlling circumstances. But such suggestions or requests so written should not be of a dispositive nature, nor contain anything likely to affect the construction of the will or the rights of the beneficiaries.

In Brady v. McCrosson, 5 Redf., 431, the appointment of an executor not being deemed an essential of a will, a subsequent clause appended for the appointment of an executrix was held not to invalidate the will, and probate was allowed to all except the appointing clause. The will offered for probate was written upon a sheet of foolscap paper. All of the disposing parts were written upon a single page, by which the decedent made his wife sole devisee and legatee. In it he named no one as executor. The will was signed by the testator and two witnesses at the foot of the page. After the scrivener had drawn the will under decedent’s direction, it was read over to him in the presence of the witnesses; he pronounced it to be as he wished it, whereupon it was executed and witnessed. After this had been done, and the will was completed, the deceased wished the name of his wife inserted, as executrix. The scrivener drew at the top of the second page an appointment of the wife as executrix, which was signed by the decedent, but not by the witnesses. All this occurred while the witnesses were still present. It is said in the opinion of the court: “It was the ancient rule that no paper in the nature of a will would be valid as such unless it contained the appointment of an executor, but such long since ceased to be the law. The statute makes provision for the appointment of an administrator with the will annexed, where no executor is named in the will. I think the will properly executed as such, and that it should be admitted to probate.” It was therefore held that the first page was decedent’s will, and the same was admitted to probate. It was considered an operative instrument, independent of the appointment of the executrix.

In the case under consideration it is not claimed that the testator, Baker, was laboring under any mistake, misapprehension or misdirection, as to where he should place his signature. The signing and attestation had reference to the same preceding parts of the instrument and to ho other. It waá not a case in which the signature was attached to one disposition of the testator’s property and the attestation to another. Glancy v. Glancy, 17 Ohio St., 134. The will was understandingly completed, and no obstacle stood in the way of fully carrying out all its dispositive provisions. The intimation of the testator’s wish beneath the signatures, namely: ‘ ‘ My sister-in-law is not required to give bond when probated,” while it is not to be treated as part of the will, we do not regard it as of so essential a nature that the will must be avoided because it was not inserted above the testator’s signature.

In the light of the evidence disclosed in the record, we cannot from those words of the testator say, as was said in Hays v. Harden, 6 Penn. St., 409, 414: “We have no reason to believe he would have wished any part of it to stand if the whole did not.” The testator by his will had appointed his sister-in-law executrix. If nothing had been said as to bond, the omission would not have rendered the will inoperative. And a request in the body of the will that an executor be not required to give bond would be subject to the discretion of the court admitting the will to probate, which might grant letters testamentary with or without bond, as it might seem expedient. And when granted without bond, the court might, at any subsequent period, upon the application of any party interested, require bond to be given. Reviséd Statutes, § 5996.

The clause dispensing with the givihg of bond by the sister-in-law, being inserted below the signatures of the testator and subscribing witnesses, while not admitted to probate as part of the will, is not of a character to affect the validity of the instrument. Nor do we think it was the intention of the testator that if the probate court could not be permitted to exercise its discretion in relieving the executrix from the necessity of giving bond, his last will and testament should consequently be declared void. The fact that the testator expressed no wish that bond should, be dispensed with, before he added the words after the attestation clause, would indicate that the subject was an afterthought which had not before especially engaged his attention.

In our opinion, the testator, within the meaning of the statute, signed his last will and testament at the end thereof, and the judgment of the circuit court, should therefore be affirmed.

Judgment aceordvngl/y.  