author: Johnson, Chief Judge.

text:
    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.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    Lockwood et al. v. Krum, Administrator de bonis non, et al.
    1. Where a court, upon the trial of questions of fact, states its conclusions of fact separately from its conclusions of law, it is not necessary to the right of a party- to have the decision reviewed on questions of law arising upon the facts found, that he should have made a motion for a new trial.
    2. A wife, living separate and apart from her husband, brought an action for alimony and obtained a decree requiring the husband to pay her a definite sum semi-annually during her life. The payment of this sum the husband secured, and then gave the remainder of his property, consisting of notes and a mortgage of the value of fifteen hundred dollars, to his children, and soon thereafter died. The widow caused letters of administration to be granted, and appraisers to be appointed, who set off and allowed for her year’s support the sum of eight hundred dollars. The administrator brought an action against the mortgagor and said children, to obtain a decree declaring the gifts to the children void, and the application of the fund arising from the mortgage to the payment of said allowance to the widow. The court found that in making the gifts to said children by the deceased, no fraud was intended other than what was to be implied from the transaction. Held, that the administrator was not entitled to recover.
    Motion for leave to file a petition in error to reverse the judgment'of the District Court of Ashtabula county.
    The original action was brought in the Court of Common Pleas of Ashtabula county by Alexander McAdams, ;as administrator of the estate of Abel Lockwood, deceased, against Hiram N. Welton, Win. H. Lockwood, and Charles Lockwood, to foreclose a mortgage executed by Welton to secure certain notes of his given to the intestate in his lifetime, and which were alleged to be in the hands of the Lockwoods. Grizzy Lockwood was made a party defendant. Issues were joined, which were tried in the common pleas, resulting in a judgment for William H. and Charles Lockwood, from which the plaintiff appealed to the district court. McAdams dying during the pendency of the action, Erum, administrator de bonis non, was substituted as plaintiff. The district court, by request of the parties, made a special finding of facts, and stated its conclusions of law separately from the finding. To the judgment rendered on the finding, Wm. H. and Charles Lockwood excepted. The finding and judgment were as follows:
    “ Oil or about the-day of August, 1870, Abel Lockwood, deceased, then eighty years of age, was married to Grizzy Lockwood, then seventy years of age. Failing to .agree, they separated on or about the 1st day of October, 1871. Said Abel was then the owner of personal property, ■consisting of notes secured by mortgage, amounting to about $8,500. He went to live with his son, the defendant, William H. Lockwood, and entered into an agreement with said William H., whereby said William PL, in consideration of $1,500, then paid to him, agreed to support said Abel Lockwood during his life. The note first mentioned in plaintiff’s petition constituted a part of the $1,500 so paid to William IP. for supporting said Abel. The $1,500 was so paid and delivered to said William PI. on the 19th day of October, 1871, and at the same time said Abel delivered to said William PL the balance of his. notes and mortgages, amounting to about $2,000, to be disposed of, as follows: To each son two shares, and to each •daughter one share, amounting to about $400 to each son and about $200 to each daughter; and said Abel, in pursuance thereof, assigned to Charles Lockwood the two last notes mentioned in the petition. That soon after — to wit, October 25, 1871 — and while said property remained in the actual possession of the said William PL, said Grizzy Lockwood, wife of said Abel, commenced suit in the common pleas court for divorce and alimony, making said William IP. Lockwood, Charles Lockwood, Hiram Lockwood, Emeline Goodno, and Esther. Newton, children of ■said Abel, defendants; and in said case a divorce was refused and alimony allowed. Said cause, so far as it related to alimony, was appealed to the district court; and there such proceedings were had that a decree was entered at -the May-term, 1872, of said district court, that defendant, Abel Lockwood, within ten days from the rising of said court, pay to the clerk thereof, for the use of said Gi’izzy, fifty dollars, and the further sum of thirty dollars on the -first day of each July and January thereafter during her natural life, and no longer; and that said Abel pay the ■costs of said suit. That the sum of $1,500 paid by said Abel to said William H. to provide for the support of said Abel during his natural life was just and reasonable; that ■so far as related to the money and property delivered by ■said Abel to said William H. over and above said sum of $1,500 last above mentioned, the court found that said William IP. held the same in trust and as trustee for said plaintiff for the payment of the alimony and cost therein decreed; and it was further ordered that said William H. Lockwood, within thirty days from the rising of said court, deposit said note and securities, over and above said $1,500, with the clerk, or execute and deliver to the clerk of said court, for the use of said plaintiff, a bond, with surety to be approved by the clerk of the court, in the sum of $2,000, conditioned that he would hold, said securities, or the proceeds thereof, in trust for the payment of said alimony and costs. That said William H. executed said bond in all respects as required, paid said alimony and costs in all respects as required by said order, and has ever since paid every installment of alimony as the same became due.
    “ That after said decree was rendered, and during the lifetime of said Abel, it was agreed by and between said Abel and his said children, that said William H. should assume and pay said alimony as it should become due; and for that purpose, and in consideration thereof, he should retain, and he did retain, the sum of $500; and by direction of said Abel, the balance of said property, after paying the costs of said suit, amounting to $279 for each son, and $139.50 for each daughter, was paid over and delivered by said William H. to his said brothers and sisters, he retaining the $1,500 so paid him for the support of said Abel, and $500 for the payment of said alimony.
    “ That said Abel Lockwood died on the 29th day of September, 1872, intestate, leaving no property, real or personal, other than that given to said children as aforesaid. That letters of administration were issued to Alexander McAdams, brother of Grizzy Lockwood, May 18,1873, who caused the appraisers to set off' $800 in money for a year’s support to said Grizzy; but no property whatever ever came into the possession of said administrator, and there was no property from which said allowance conld be paid, unless it should be recovered back from said children, it having already been distributed by said Abel in his lifetime. That there was no consideration for the gifts so made by said Abel to his children except natural love and affection; and the same was done to defeat any claim of said Grizzy for alimony and support. That said note first mentioned in the petition was fully paid by the defendant, Welton, to .said William H. before the suit was begun. That in dividing said property in the lifetime of said Abel, said William H. took the second and third notes mentioned in the petition, and paid to his brothers and sisters in said division •the full amount thereof. That said Welton has paid to said William H. the whole amount of the second note mentioned in the petition, and all but $150 of the last note since this suit was commenced. That there was no evidence of fraud on the part of said Abel in giving or of said William'H. or Charles Lockwood in receiving said property so divided to them, unless it arises as matter of law from the want of other consideration than natural love and affection and the relations then existing between Abel Lockwood and his wife Grizzy.
    “And, as matter of law, the court find that said William and Charles Lockwood hold each the said sum of $279, so received of the said Abel, subject to the debt of said Grizzy for her year’s support as widow of said Abel; that they, said William and Charles, are liable for interest on said sums from the commencement of this suit; that the plaintiff, as such administrator, is entitled to a decree against said William and Charles Lockwood for the amount so received by each as aforesaid, with interest as aforesaid, as a fund with which to pay said debt of said Grizzy.
    “ Whereupon, it is by the court adjudged and decreed that said William and Charles Lockwood each pay to said plaintiff the sum of three hundred and fifty dollars and seventy-five cents ($850.75), the principal and interest aforesaid, within thirty days from the close of this term of this court, and that they pay the costs of this suit, to be taxed, and that in default thereof that execution issue as upon executions at law ; and as to said Hiram N. Welton this cause is dismissed. To each and all of which findings and holdings and decree, said William and Charles Lockwood, each except.”

      Hall Brothers, for the motion.

      H. L. Chaffee, contra.
   Boynton, J.

Where alimony is decreed to a wife, not in gross, but in installments, to be paid at stated times, the decree should limit her right to receive the same to the period of coverture, where it is not to terminate before that relation ceases.

The estate of the husband can not, properly, in a proceeding for alimony, be charged or incumbered with the support of the wife to continue after his decease. If this could be done, the settlement of estates would not only be indefinitely prolonged, but funds rightfully belonging to the assets to be administered, would be diverted and employed to make provision for such support. Th§ legal obligation of the husband to furnish support to the -wife ceases upon the termination of the marriage relation. Dunlop v. Johnston, 1 Law Rep. H. L. 109; 1 Bish. on Mar. and Div. § 58. The rights that accrue to her after the decease of the husband, in virtue of the relation terminated by his death, are created by the statute. If he dies leaving an estate to be administered, she is entitled tó an allowance for a year’s support for herself and minor children under fifteen years of age, to be paid after the funeral expenses, those of the last sickness, and of administration are provided for. If there are no assets to be administered, the statutory right to the allowance is of no avail. No complaint, however, appears to have been made, that the obligation to pay the alimony decreed was to com tinue during the life of Mrs. Lockwood. And the same having, been provided for by the deceased, he may well have supposed that her claims upon him were satisfied,.and that he was at' liberty to dispose of the remainder of his property-in such manner as he saw fit; and, hence, after providing for his' own support during life, the terms of which provision the court approved as reasonable and proper, and after securing the payment of the sum decreed the wife, there remained about $1,500, which he divided among his children. This is the alleged wrongful act complained of.

In order to defeat or avoid the gift thus executed, two facts must appear; First, That the same was made to defraud the creditors of the donor; and, Secondly, That Mrs. Lockwood was a creditor in respect to the right to a year’s support, after his decease: .

1. It appears, distinctly, from the special finding, that at the time the division was made among the children, the deceased was entirely out of debt. Such being the fact, the case is distinguishable from Allen v. Allen’s Adm’r, 18 Ohio St. 234, in several respects: (1.) In that case there were existing creditors to be defrauded. (2.) The property conveyed with intent to defraud the creditors of the grantor was real estate, made by statute, when convoyed with such intent (1 S. & C. 589, § 121), expressly liable to be reached and sold by the executor or administrator, the proceeds to be applied to the payment of the debts of the estate; and, (3.) The fraudulent grantee took the title to hold upon a secret trust for the benefit of the grantor.

Here, there were no existing creditors to defraud, the property given was personalty, and the gift was executed by delivery.

2. It is difficult to see upon what principle the wife can be regarded as a creditor of her husband as respects the allowance for her year’s support after his decease. Where there is a creditor there must be a debt and a debtor. But it is not pretended that any obligation or liability arises in respect to such support while the husband is living, nor is it denied, that it is wholly a creature of statute, with no existence or possibility of existence until after the husband dies. It is true, as was said in Allen v. Allen’s Adm’r, that the right to the year’s support is mentioned in the statute as- a debt to be paid out of the assets of the estate, but, -notwithstanding it is a debt against the estate, it is,- in no just sense, a debt against the husband having any existence during his lifetime. Ris death is a necessary condition to its existence, and,where he survives the wife, it has no existence at all.

The case of Livermore v. Boutelle, 11 Gray, 217, cited in ¡argument affects the question but very little.

That was an action brought to set aside a conveyance -made by the husband of the plaintiff to the defendant, with intent to defraud creditors. The conveyance was made after such marital conduct of the husband as laid the -ground for a divorce and alimony to the wife. It was de-nied that the wife, in respect to her claim for alimony, was .a creditor of her husband within the meaning of the statute against fraudulent conveyances. This was the point -presented for adjudication.

The statute of 13 Eliz. c. 5, in force in Massachusetts, ■avoided “All feigned co vino us and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, devised and contrived of malice, -fraud, covin, collusion, or guile, to the end, purpose, or Intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, dam • ages, penalties, forfeitures, heriots, mortuaries, and reliefs.’‘ "The court held, that if she was not a creditor, she was of the others, whose just and lawful actions, suits, and reliefs, •would be delayed, hindered, or defeated by such conveyance. To the same effect is Bailey v. Bailey, 61 Me. 361. -

But the claim for alimony has a different footing from one involving the right to a year’s support from a dece•dent’s estate. It rests on the common-law obligation of the husband to suppoi’t the wife in a manner suitable to his • condition and station in life during the existence of the marriage relation; a fact which distinguishes the above cases from the one at bar, even had the court there held the wife, as respects her claim for alimony, to be a creditor. And this obligation is as binding after the commission, by vthe husband, of a marital offense entitling the wife to a divorce,as before. In respect to such obligations she may well be held to be a creditor of the husband.

If, in the present case, there had been existing creditors to be affected injuriously by the act of the deceased, in thus dividing his property among his children, aud the administrator had, in consequence thereof, recovered the property or its value, it would have inured to the benefit of all entitled to share in the distribution of the estate, and in the order of priority prescribed by the statute. In such case there would have been a foundation for the action, in the-circumstance that there were creditors entitled to the fund wrongfully parted with ; and the property or its value once-recovered, would be treated as belonging to the estate, to be administered in all respects as intestate property. This is the principle controlling the case of Allen v. Allen’s Adm’r, ubi supra. But if Mrs. Lockwood be treated as a subsequent creditor the result would be the same. "We do-not think it sufficiently appears that the deceased, in giving away his property, intended to defeat the allowance or enjoyment of the wife’s year’s support, nor that the circumstances of the case require or authorize the court to infertile existence of such fraudulent purpose. It follows that the judgment ought to have been the other w'ay.

"We have not felt called upon to discuss or consider the-right of the administrator to maintain an action of the-character of the present.

In Benjamin v. Le Baron’s Adm’r, 15 Ohio, 517, the right of the executor or administrator to maintain an action of trover to recover the value of property sold by the decedent with intent to defraud creditors was denied. It was there' intimated that equity would afford relief where the property was required to pay debts of the estate. But the point as yet has not been authoritatively settled in this state. It is claimed on the one hand that the right of the-executor or administrator to recover the property so sold, or its value, rises no higher than that of the deceased whose-estate is being administered, and on the other, that as the-representative of the creditors, the executor or administrartor is entitled to maintain the action in all cases where the property is required to satisfy the claims of creditors against whom the fraudulent sale was void. As the disposition made of the present case renders it unnecessary to-decide the question, we express no opinion upon it.

The claim that the court is not authorized to review the-judgment of the district court, because no motion fora rehearing was made in that court, is not well founded. The fourth section of the act to relieve the district courts and to give greater efficiency to the judicial system' of the state (73 Ohio L. 140), confers the right to except'to the opinion of the court in all cases of a motion for a new trial for “the reason that the verdict, or in case the jury be waived, that the finding of the court may be supposed to be against law or evidence,” so that the case may be removed by a petition in error. The finding of_the court, to-review which a motion for a new trial is thus made necessary, is a finding of facts from the evidence. It does not embrace conclusions of law arising upon the facts. Westfall v. Dungan, 14 Ohio St. 276.

Motion granted; judgment of the district court reversed and judgment for the plaintiffs.


author: McIlvaine, J.

text:
    Baer, Harkeimer & Co. v. Otto.
    1. On the hearing of a motion to discharge an attachment, hy a justice of the peace, if the motion be supported by affidavits, counter-affidavits may also be considered; and this rule applies where the property attached is the personal earnings of the debtor, claimed by him to be necessary to the support of his family.
    2. An order of a justice of the peace made on a motion to discharge an attachment, can not be reviewed on proceedings in error where the error alleged is that the order was against the weight of evidence.
    Motion for leave to file a petition ,in error to the District Court of Eranklin county.

      The plaintiffs in error brought an action against the defendant in error, before a justice of the peace, on an account, and at the same time filed an affidavit for attachment, on the ground that the defendant was about to dispose of his property, or a part thereof with intent to defraud his creditors. Such proceedings were had that certain money due the defendant for personal services from Hayden & Co. was attached by garnishee process.
    Afterward, and before judgment, the defendant moved that the attachment be dismissed and discharged on the ground that the money attached was due him on account •of personal earnings within three months previous, and that the same was necessary to the support of the debtor and his family. In support of the motion the defendant •offered his own affidavit, and thereupon the plaintiff offered counter-affidavits tending to prove that the money attached was not necessary to the support of the defendant or his family. To the introduction of these counter-affidavits the defendant excepted. The motion to discharge the attachment was overruled by the justice and the defendant ex■cepted thereto.
    Judgment was thereupon, on confession, rendered in favor of the plaintiffs for the amount claimed.
    On petition in error to the court of common pleas, the order of the justice, refusing to discharge the attachment, was affirmed, and thereupon the defendant filed his petition in error in the district court, to reverse the order and judgment of the justice and of the court of common pleas. In the district court, the judgments below were reversed, and the cause remanded to the justice of the ■peace, with directions that the attachment be discharged.
    To reverse the judgment and order of the district court, the plaintiffs in error now ask leave to file a petition in ■error in this court. „

      Charles E. Burr, Jr., for the motion,
    contended that the ■counter-affidavits were admissible; that the question of what is or is not necessary for the support of the family is purely a question of fact, and one to be judicially heard and determined upon testimony; and that the ruling of a justice of the peace, sustaining or discharging an attachment, on an issue of fact, can not be reviewed, on error. Bancroft v. Talbott, 29 Ohio St. 542; Leonard & Cook v. City of Cincinnati, 26 Ohio St. 447.

      Wylie £ Quinn, contra,
    contended that the affidavit of defendant below, as to the property attached being his personal earnings, and necessary for the support of his family, was conclusive, and can not be contradicted; and that the decision of the justice was reviewable on error. Snook v. Snitzer, 25 Ohio St. 516.
   McIlvaine, J.

Of the points raised by counsel for plaintiff in error, we shall consider only two :

1. "Were counter-affidavits admissible on the hearing of the motion to discharge the attachment ?

By the act of April 16, 1873 (70 Ohio L. 132), it is enacted “ That every person who has a family, and every widow, shall hold the following property exempt from execution or sale for any debt, damages, fine, or amercement, to wit: . . . Sixth. The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for any time not exceeding three months previous to the rendition of the judgment, or the assessment of the fine or amercement, upon which execution is issued, when it shall be made to appear, by affidavit of the debtor, or otherwise, that such earnings are necessary to the support of the debtor, or of his or her family.”

Section 30 of the justices’ code (Swan & Critchfield, 776), provides “ That the order of attachment may be made to accompany the summons, or at any time thereafter, before judgment; it shall be addressed and delivered to any constable of the proper township, and shall require him to attach the goods, chattels, stocks, or interest in • stocks, rights, credits, moneys, and effects of the defendant, in the •county, not exempt by law from being applied to the payment of the plaintiff’s claim,” etc.

It thus appears that the personal earnings of the debtor, within three months, are exempt from attachment, “ when it is made to appear, by the affidavit of the debtor or otherwise, that such earnings are necessary to the support of ■such debtor or his family.” Otherwise, they are subject to attachment for the satisfaction of his debts, etc.

Prima facie, all the earnings of the debtor are subject to “be attached. It is only when earned within the previous three months, and when it is made to appear that they are necessary to the support, etc., that they are exempted.

In this case, the earnings of the debtor were seized by the garnishee process. Prima facie, this seizure was lawful. The burden ofmaking it appear that the seizure was wrongful rests on the debtor. He assumed this burden, .and made his affidavit, in support of the motion to discharge the attachment, that the necessity existed; and it is claimed that the fact is thus conclusively made to appear. Is this claim defensible ?

Previous to the decision of Bancroft v. Talbott, 29 Ohio St. 538, doubts were entertained as to the power of a justice of the peace to entertain a motion to discharge an attachment ; but in that case it was settled that such power existed, under the provisions of the code of civil procedure, which were made applicable to proceedings before justices of the peace, in this respect. Now, by the same reasoning, it is quite clear that, if the motion to discharge lie supported by affidavits, it may be opposed by affidavits, as section 229 of the code of civil procedure provides •“ That if the motion (to discharge an attachment) be made upon affidavits on the part of the defendant, or papers and ■evidence in the case, but not otherwise, the plaintiff may •oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made.”

The justice, therefore, did not err in receiving evidence .against the motion to discharge the attachment.

2. Can an order of a justice of the peace, in granting or overruling a motion to discharge an attachment, be reviewed on the ground that such order was against the weight of the testimony ?

In the case of Bancroft v. Talbott, supra, it was said: “ While some members of the court are prepared to answer this question in the negative, we are all of opinion -that, if the weight of the evidence may be inquired into, the order should not be disturbed, unless it be 'clearly .against the evidence; and that, in this case, there is no such preponderance against it as .would justify a reversal of the order discharging the attachment.”

In the case now before us, it might be said that there is no such preponderance of evidence against the order refusing to discharge the attachment as would justify its reversal.

But, in order to settle the practice in such cases, we now decide that there is no provision made by legislation, as it now stands, for preserving the evidence offered on such motion, or for reviewing the decision of the justice, upon the ground that such'order, either in granting or refusing the motion, is contrary to the evidence.

The statute prescribing the contents of a justice’s docket (section 208 of the justices’ code, S. & C. 804, 805) does not require any evidence to be recorded. And the only statute which authorizes a bill of exceptions to be signed by a justice is the act of February 11,1869 (66 Ohio L. 7) ; and the sole object of the bill of exceptions provided for in this act is to authorize a review of the questions of law arising during a trial of the cause before the justice.

Judgment of the district court reversed, and of the common pleas affirmed.


author: G-elmore, J.

text:
    Devereux, Receiver of the Atlantic and Great Western Railroad, v. Buckley & Co.
    If a common carrier is chargeable with knowledge that the article carried is intended for market, and unreasonably delays its delivery, and there-is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered, and the-time it was in fact delivered, such depreciation will, ordinarily, constitute the measure of damages.
    Motion for leave to file petition in error to the District Court of Hamilton county.
    The action in the court of common pleas was against the defendant, as a common carrier, for his failure to speedily and safely carry, and deliver at New York city, eggs, shipped thither by the plaintiffs, over the Atlantic and Great Western Railroad, of which the defendant is receiver.
    It appears from the testimony, all of which is set out in a bill of exceptions, that J. P. Buckley & Co., the plaintiffs-below, were dealers in country produce at Springfield, Illinois, and desiring to make shipments of large quantities of eggs from that point to the city of New York over the Ohio and Mississippi, and the Atlantic and Great Western Railroads, applied to Mr. Stanton, the general agent of theformer road, in March, 1875, for “ time ” on shipping eggs to New York city over the roads named, who, at their request, wrote to Mr. Cochran, general freight agent of the Atlantic and Great Western Railroad, at Cincinnati, for his “ time ” from Cincinnati toNew York city, informing him that the Ohio and Mississippi Railroad could get them to Cincinnati in two days, if the Atlantic and Great Western Railroad could get them to New York city in three days, and asked Mr. Cochran if it was probable he could make that “ time ” over his road. He replied that they could do so without doubt, and to keep him fully advised by telegraph of the shipments, and he would give them his special attention.
    In pursuance of the understanding and arrangement thus made, the plaintiffs made several shipments of eggs-over the route indicated to New York city, commencing-March 25, 1875.
    On the 81st of March, 1875, the plaintiffs shipped thirty barrels, being 2,195 dozen of eggs, from Springfield to-New York city, over the route stated, of which telegraphic-notice was sent in advance to Mr. Cochran by Mr. Stanton.. The eggs were delivered to the Atlantic and Great "Western Railroad, at Cincinnati, on the 2d day of April following, and were retained there for five days, and did not arrive in -New York city until the 14th day of the same-month, instead of the 7th, as per arrangement. The eggs-were delivered to the consignees on the day they arrived, and by them sold on account of the plaintiffs the same-day, at the market price, which was some twelve cents-per dozen lower than the market price at the same place on the 7th of April.
    The defendant failed to answer, and the cause was submitted to the jury on an inquiry of damages.
    The testimony tended to prove all the facts above stated. To all of which the defendant objected, and moved' the-court to exclude it from the jury on the following grounds :
    1. That it does not show that the defendant agreed to-guarantee the price of the eggs in New York city, nor that the eggs in question were shipped to the New York city-market.
    2. Because the price of eggs in New York city has no bearing on the inquiry of damages to be submitted to theJU1T-
    The court overruled the objection, and refused to exclude the testimony from the jury, and the defendant excepted.
    The jury assessed as damages the difference between tho .price of eggs on the day they should have been delivered .and the price on the day they were delivered, for which j udgment was entered for the plaintiffs.
    This judgment was affirmed in the district court, and the plaintiff in error, by this proceeding, seeks the reversal ■of both judgments. •

      Durbin Ward, for the motion,
    made the following points :
    1. "Where a shipment is made by a consignor on a rail-Toad, as a common carrier, it is liable for damages to the •consignor only on the contract of shipment, and not otherwise.
    2. That contract embraces no more than is in the mind ■of the parties.
    3. The law, it is true, makes certain presumptions in the .absence of proof as to what must have been in the minds of the parties, and so holds common carriers to certain pe•culiar liabilities without proof of express contract. But whenever it is sought to go beyond these peculiar liabilities ■of the common or statute law, then, like any other person, ■the common carrier is only liable on proof express (or implied from facts, not by law), to be made out by the party -seeking to hold him liable.
    To the claim in this case he said: 1. That, as a principle of law, the common carrier is only bound to make good ■the loss which is the natural and legitimate result of his failure to comply with his contract, and not for remote damages not in the contemplation of the parties contracting. 2. That the railroad company did not agree to guarantee the price of the article shipped at the point of consignment, neither on the day that it ought to have arrived, nor on any other day. 3. The proof does not show that the goods were shipped to any market, nor to be sold at all. 4. We insist that the damages legally arising from ■our negligence are to be measured by the terms of our contract, and not by the varying range of the New York market, and these damages consist in the additional cost, ■if any, to the consignee by the non-arrival of the goods, and we claim that the exact point in this case has been set-■tied in our favor by Headly v. Boxendale, 9 Exch. 341. And see Angell on Car., sec. 282, et seq.; 14 Ill. 156; 19 Barb. 36 ; 18 Eng. L. & Eq. 557 ; Sedw. on Damages, 406, and note; Sedw. on Damages, 72, 73, 74, 78, 79, 80; 1 Disney, 23; 16 N. Y. 489; Ward v. N. Y. Central R. R., 47 N. Y. 29; s. c., 7 Am. 405 ; 2 Kent. Com. 480; Denning v. Gr. Tr. R. W., 48 N. H. 455; s. c., 2 Am. 267; Home v. Midland R. W. Co., 8 Eng. Com Law, 131 (1873) ; Walcot v. Mount, 12 Am. 438 ; Hubbard v. Telegraph Co., 13 Wis. 558; s. c., 14 Am. 775 ; Maineville v. U. S. Telegraph Co., 37 Iowa, 214 ; s. c., 18 Am. 8; Rhodes v. Baird, 16 Ohio St. 573; Seeley v. State, 11 Ohio, 501; Cin. v. Evans, 5 Ohio St. 594; McGregor v. Kilgore, 6 Ohio, 358 ; Louis v. Steamboat Buckeye, 1 Handy, 150; Cincinnati Chronicle Co. v. White Line C. T. Co., 16 S. C. R. 300.

      Wrn. E. Imes, contra,
    claimed that the measure of dam.ages should be the loss sustained in the sale of the goods by reason of the delay in shipment. Ward v. Railroad, 47 N. Y. 34; Sisson v. Railroad, 14 Mich. 489; Cutling v. Railroad, 13 Allen, 381; Denning v. Railroad, 48 N. Y. 469 ; Sedw. on Damages (6 ed.) 74, 433, note; Ang. on Carriers, sec. 284; Redfield on Carriers, sec. 29; Field on Damages, 323, sec. 375; Wilson v. Railroad, 99 E. C. L. 632; Peet v. Railroad, 20 Wis. 594.
   G-elmore, J.

The action in the court of common pleas was not brought upon any express or special contract, but to recover damages for a breach of an implied agreement to carry, and deliver at the place of consignment, a large lot of eggs, within a reasonable time, by a common carrier.

By failing to answer, the defendant (plaintiff in error) admitted the breach as alleged.

On an inquiry of damages, the court, against the objection of the defendant, permitted testimony to go to the jury tending to prove the market value of eggs at the place of consignment on the day they ought to have been delivered, and their value at that place on the day they were actually delivered, and that their value was less on the latter than on the former day.

Counsel for plaintiff in error contends that the court erred in admitting this testimony to go to the jury, on the ground that the defendant “ is only bound to make good the loss which is the natural and legitimate result of his' failure to comply with his contract;” and that a loss arising from a depreciation in the market value of eggs at the place of delivery, in consequence of his breach of the contract, is not a natural or legitimate result of such breach.

In support of this proposition, counsel relies very much upon the leading English case of Hadley v. Baxendale, 9 Exch. 341.

The rule laid down in that case for the ascertainment of damages in cases of breach of contract is divided into two alternative heads.

Under the first of these, damages are to be allowed which would arise naturally, or according to the usual course of things from the breach of the contract; and, under the second, those which may fairly be supposed to have been contemplated by the parties as the probable result of such breach.

The case before that court fell under the first of these heads, as will appear from the following language, taken from the opinion : “Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants, at the time the contract was made, were that the article to be carried was the brokeu shaft of a mill, and that the plaintiffs were the millers of that mill. Rut how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person ? ”

And the court was of the opinion that, under those circumstances, the profits of the mill, which were lost in consequence of the breach of the contract to deliver the broken-shaft, which was to be used as a pattern for a new one, -within a reasonable time, did not constitute such damages .as would arise naturally, or according to the usual course ■of things, from the breach of. the contract.

But we do.not think that the facts and circumstances of the case before us bring it under the first; but, on the contrary, for reasons that will be stated below, we think it ■clearly falls under the second of the alternative heads in Hadley v. Baxendale, and that the plaintiffs were entitled to recover such damages as may reasonably be supposed to have heen in the contemplation of the parties at the time they made the contract, as the probable result of the breach of it.

The proposition, as thus stated, is fully sustained by an .abundance of authority. Ward v. New York Central R. R. Co., 47 N. Y. 29; Scott v. Boston and New Orleans Steamship Co. 106 Mass. 468 ; Sedgwick on the Measure of Damages (6 ed.), 79 ; Ib., note, 81; Field on Damages, sec. 375 ; Griffin v. Colvin, 16 N. Y. 489; Cutting v. Grand Trunk R. W. Co., 13 Allen, 381.

In view of the doctrine as settled by these authorities,it may be safely said that if a common carrier is chargeable with knowledge that the article carried is intended for the market, and unreasonably delays its delivery, and there is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered and the time it was in fact delivered, such depreciation will, in the absence of any special contract, ■constitute the measure of damages.

Was the carrier chargeable with such notice in this case ? W e think he was.

The anxiety of the plaintiffs to obtain quick time on their shipments of eggs, which was communicated to the ■defendants’ agent, shows that, for some reason, they regarded “ time ” as an important element in the shipments. 'The agent, for some reason, appreciated the necessity for ■quick time in the contemplated shipments; .named a time within which he could carry the eggs over .his part of the ■route, and requested to be kept advised by telegraph, so that he might give the eggs his special attention when they reached the point at which he was to receive them. Why this preconcerted arrangement ? With the knowledge of business, which their avocations must have put them in possession of, both parties knew that when large quantities of eggs were being shipped to a great city, they were-usually, if not always, intended for the market at such city. And the reason why both parties recognized the necessity of quick time in the transportation of the article, ■ was that they undoubtedly knew that in this country the market value of eggs was liable to decline at the season of the year in which the shipment was made in this case, and the damages consequent upon such a decline must have been in the contemplation of both parties at the time the-contract was made.

Motion overruled.


author: By the Court.

text:
    Mays v. Joseph.
    A verbal promise, by a judgment creditor, to indemnify an officer, boldingan execution, against loss or damage from the seizure and sale of property claimed by the debtor to be exempt from execution, is not void as being against public policy; nor is such promise within the statute of frauds.
    Motion for leave to file petition in error to the District. Court of Lawrence county.
    The plaintiff in error, having recovered a judgment before a justice of the peace, against one Corns, caused an execution to be issued thereon and delivered to the defendant in error, as constable for service. There was found, in-the possession of the judgment debtor, a yoke of oxen, which he claimed was exempt from levy and sale. Whereupon, the defendant in error refused to seize the oxen, under the writ of execution, unless the plaintiff in error would indemnify him from loss and damage in so doing.
    Thereupon, the plaintiff in error requested and directed the defendant to levy upon and sell the oxen, and promised to save him and his sureties harmless fn the premises. The defendant in error, relying upon this promise of indemnity, seized and sold the oxen, and applied the proceeds to the satisfaction of the judgment.
    Afterward, the execution debtor recovered a judgment against the defendant in error, for the wrongful seizure and sale of the oxen under said writ.
    The original action was brought by Joseph, the constable, against Mays, the plaintiff in execution, on said verbal promise of indemnity, and judgment was recovered thereon in the court of common pleas. This judgment was affirmed by the district court.
    By this proceeding, it is sought to reverse these judgments, upon the following grounds:
    1. That the promise of indemnity was illegal upon grounds of public policy.
    2. That it is void under the statute of frauds and perjuries, as a promise to answer for the debt, default, or miscarriage of another person.

      W. II. Enochs, for the motion:
    1. The promise was a verbal one to answer for the defaults and miscarriages of another, and is within the statute of frauds and void. S. & C. 659 ; Wickworth v. Mills, 2 Esp. 483; Brown on the Statute of Frauds, 145, 148, secs. 155, 159 (3d ed.) ; Easter v. White, 12 Ohio St. 209, 227; Kelsey v. Hibbs, 13 Ohio St. 340.
    2. The contract is not binding, as it is a promise to indemnify the party for doing an unlawful act, as well as an act contrary to the public policy. Bloom v. Richards, 2 Ohio St. 387, 395; Rossman v. McFarland, 9 Ohio St. 369, 379 ; 6 Ohio, 442; 10 Ohio, 51, 54.

      0. F. Moore, contra :
    1. The promise was not within the statute of frauds, because :
    1. The promise was an original undertaking on the part of the plaintiff in error; there was nothing collateral about it.
    2. There was no third person concerned. The agreement concerned no one but the parties to it. There was no default or miscarriage of any one contemplated or femhraced by the agreement.
    3. When the promise is made by one for whose benefit the act is to be done, it is not a promise to answer for the ■debt, default, or miscarriage of another, within the meaning of the statute. Blake v. Cole, 22 Pick. 97 ; Thomas v. Cooke, 15 Eng. C. L. 333; Chapin v. Merrill, 4 Wend. 657; Chapin v. Lapham, 20 Pick. 467; Ferrell v. Maxwell, 28 Ohio St. 387.
    II. The act done by the constable was not an illegal act, or one against public policy. Miller v. Rhoades, 20 Ohio St. 496.
   By the Court.

That the promise of indemnity sued on was not invalid as being against public policy, was settled in Miller v. Rhoades, 20 Ohio St. 494, and cases therein cited.

2. The promise was an original and not a collateral engagement. There was no element of debt, default, or miscarriage of any third person in the agreement. The act against which the indemnity was promised was for the benefit of the promisor, and involved a liability to loss on the promisee, and was not within the statute of frauds. Green v. Cresswell, 10 Adolphus and Ellis, 453; Weld v. Nichols, 17 Pick. 538; Adams v. Dansey, 6 Bing. 506; Goodspeed v. Fuller, 46 Maine, 141; Marcy v. Crawford, 16 Conn. 549; Allaine v. Ouland, 2 John. Cases, 52; Browne on Statute of Frauds, chap. 10, p. 144 et seq.

Motion overruled.