author: Davis, J.

text:
    Barber v. Knowles.

      Privilege from summons — Extended to non-resident stiitor — Going to or returning from court — Reasonable deviation from direct route allowed.

    1. A suitor going to, attending or returning from court, for the purposes of a case to which he is a party, is privileged from service of summons while so going, attending or returning. Andrews v. Lembeck, 46 Ohio St., 38, approved and followed.
    2. The privilege extends to all suitors, whether they be residents or non-residents of this state.
    3. The privilege should be allowed with a reasonable latitude. A party going to or returning from court need not take the most direct route. Reasonable deviations or delays should be allowed, provided they do not arise in carrying out a purpose entirely distinct' from the purpose of going to, attending, or returning from court.
    (No. 10225
    Decided November 19, 1907.)
    Error to the Circuit Court of Montgomery County.
    The defendant in error is a resident of the state of Illinois and was, at the time the summons in this case was served upon him, a party to a suit pending in the United States Circuit Court for the Southern District of Ohio, at Cincinnati. The said cause in the circuit court was assigned for trial on the third day of October, 1905. The defendant came to Ohio on or about the first day of October, 1905, stopping at Greenville for consultation with his counsel and started to Cincinnati on the second day of October by way of Dayton. There are two routes from Greenville to Cincinnati, one by way of Eaton, which is. perhaps the most direct, and one by way of Dayton, which is most generally used and is perhaps the most convenient. The defendant was instructed by his counsel that one Kline, a civil engineer, whose home and office were in Dayton, was a necessary witness for him in the trial in the United States court at Cincinnati, and that it would be necessary for the defendant to take certain books and papers, which were in his possession, to Kline at Dayton, and have him make therefrom certain calculations which were necessary in order to save the time of the court in the examination of Kline as a witness in the case. The defendant, therefore, stopped off at Dayton, arriving at Kline's office about nine o’clock in the morning, and being occupied with his business there until about five o'clock in the evening, leaving Dayton about six in the evening for Cincinnati. While the defendant was in Dayton for the purpose aforesaid he was served with summons in this cause. On the hearing of a motion to quash the service, the court of common pleas sustained the motion and the judgment of the court of common pleas was affirmed by the circuit court. The plaintiff below prosecutes this proceeding in error to reverse the judgments of both the courts below.

      Mr. W. A. Hallanan, for plaintiff in error.
    A party or witness, etc., to a suit, while necessarily going to, staying, at, or returning from, court is privileged from the service of summons. Dugan v. Miller, 8 Vroom, 183; Halsey v. Stewart, 1 Southard (N. J. L.), 366; Brooks et al. v. Farewell et al., 2 McCrary, 221; Lyell v. Goodwin, 4 McLean, 32.

      The privilege extends to attendance before a tribunal or officer before whom proceedings necessary in the trial or bearing of the cause, are had, as before arbitrators appointed by the rule of court, or a master in chancery. 2 Taylor on Evidence; Dugan v. Miller, 37 N. J. L., 182.
    Non-resident suitors and witnesses are privileged from being served with a summons during the time necessarily occupied in going to, attending and returning from trial. Bassett v. Gunsolus, 6 O. Dec. Rep., 1228; Nicholas v. Horton, 14 Fed. Rep., 329.
    The rule which protects parties and witnesses, from such service, while in attendance upon the trial of causes within his state, has no application to a citizen of a foreign state, having a litigation pending in said foreign state; who attends in this state in order to take testimony out of court. Parker v. Manco, 61 Hun, 519; Greer v. Young, 120 Ill., 184.
    In Van Liew v. Johnson (not reported, but cited in Person v. Greier, 66 N. Y., 126), the court say: “The order denying an application to set aside the summons in that case, was affirmed upon the ground that the party had lost his privilege by remaining within the state an unreasonable and unnecessary time • after the close of the trial, upon which he attended,” So here, Knowles took an unnecessary route to go to Cincinnati.
    The rule of exempting the witness from service of summons and arrest does not apply to nonresident suitors. Baldwin, Recr., v. Emerson, 16 R. I., 304; Capwell v. Sipe et al., 17 R. I., 475.

      Mr. W. N. Stubbs, for defendant in error.
    That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer some other adverse judicial proceeding against them, is so far a rule of public policy, that it has received almost universal recognition wherever the common law is known and administered. Compton, Ault & Co., v. Wilder, 40 Ohio St., 130; Andrews v. Lembeck, 46 Ohio St., 40; Lyell v. Goodwin, 4 McLean, 29; Miles v. McCullough, 1 Binney, 77; Bolton v. Martin, 1 Dallas, 396; Whitman v. Sheets, 20 C. C., 1; Hayes v. Shields, 2 Yeates, 222; Wetherill v. Seitzinger, 1 Miles, 237; Greer v. Youngs, 17 Ill. App., 106; Halsey v. Stewart, 1 Southard, 366; Huddeson v. Prizer, 9 Phila., 65; Holmes v. Nelson, 1 Phila., 217; Matthews v. Tufts, 87 N. Y., 568; In re Healey, 53 Vt., 694; Juneau Bank v. McSpedan, 5 Bissell, 64; Anderson v. Roundtree, 1 Pinney, 115; Lamkin v. Starkey, 7 Hun, 479; Dugan v. Miller, 37 N. J. L., 182; Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr., 331; Cole v. Hawkins, Andrews, 275; Parker v. Hotchkiss, 1 Wall., Jr., 269; Person v. Greier, 66 N. Y., 126.
    It is a principle of common law that privileges are not to be taken away by the general, comprehensive words of a statute; there can not be done by construction what is not clearly authorized by the legislature. Sedgwick on Statutory and Constitutional Law, 318; Anderson v. Roundtree, 1 Pinney, 115; Matthews v. Tufts, 87 N. Y., 568; Lamkin v. Starkey, 7 Hun, 479; Andrews v. Lembeck, 46 Ohio St., 43.
    The service of Knowles was in clear violation of this statutory rule and was properly quashed by the court below. Compton, Ault & Co. v. Wilder, 40 Ohio St., 130; White v. Marshall, 3 C. C., N. S., 499; Commonwealth v. Wright, 58 Mass., 154; State v. Simmons, 39 Kan., 264; Hackney v. Welsh, 107 Ind., 255; State v. Hall, 40 Kan., 340.
   Davis, J.

The statutes of this state (Revised Statutes, Section 5457) provide that all suitors while going to, attending, or returning from court, shall be privileged from arrest; and ever since the decision of Andrews v. Lembeck, 46 Ohio St., 38, the statute has been construed as extending the privilege to the service of summons in civil cases.

We do not understand that the counsel for the plaintiff in error questions this construction; but his contention is that the privilege is confined to the time during which the suitor is necessarily occupied in going to, attending, or returning from court; or, in other words, that in order to claim the exemption the suitor must go to. or return from court b}^ the most direct and speediest route, and that he must not delay in attendance upon the court any longer than is absolutely necessary. We think that such a rigorous application of the law would destroy the privilege, which had its origin in justice to the suitor and in the necessity of protecting the courts from embarrassment in the transaction of business.

It is a rule of interpretation, which is universally recognized, that a statute will not be presumed to derogate from or abrogate the common law. Such a legislative intention must plainly appear. It does not appear here; and therefore we may properly look to the common law for an explanation of the terms of the statute. A very few citations will be sufficient to show that under the common law the privilegie is allowed with a reasonable latitude; that a party going to or returning from court need not take the most direct route; that reasonable deviations or delays will be allowed, provided they do not arise in carrying out a purpose entirely distinct from the purpose of going to, attending, or returning from court.

In Willingham v. Matthews, 6 Taunt., 356, it appeared that the defendant went from the court, that he passed through streets which were not in the direct way to his home, and that he went into a cutler’s shop on one of those streets; and it was argued that it was his duty to go directly home and not to transact his own business by the way. The court, however, said: “A party is not bound to go the nearest way home; and if he do not abuse the privilege for the purpose of going about other business of his own, of which no evidence appears on these affidavits, we must say that he is entitled to his discharge.”

Pitt v. Coomes is reported in 5 B. & Ad., 1078, and 3 Nev. & Man., 212. Pitt had left the court in the evening and had gone directly to his office where he took refreshments and sorted his papers. After remaining at his office for from one to two hours, he left for his home, but went into a tailor’s shop, where an officer arrested him. Denman, C. J., said: “The doctrine of deviation might become very alarming if carried to such an extent that whenever the officer saw the party going one yard out of his way home, he might immediately arrest him. * * * A party on his return from a court of justice ought substantially to receive its protection, and to have the benefit of its dignity and quiet, till he reaches his home. The case just cited is stronger than this. [Lightfoot v. Cameron, 2 W. Bla., 1113.] There the party was dining with his attorney and witnesses when the officer took him; and yet he was held do be protected.” Littledale, J., in the same case said: “There is a case where a woman was a witness on a trial at Winchester, which ended at four in the afternoon of Friday; she stayed there till Saturday, and at seven in the evening was arrested as she was going home to Portsmouth; and this court held that she ought to be discharged.”

Williams v. Webb, 5 Scott’s N. R., 898, is also very suggestive. The defendant left his residence to go to his office to get some papers which he believed to be necessary in the argument of a motion in court, intending to pursue his way from his office to the court. On the way to his office he was arrested. Tindal, C. J., said: “There is no pretense for saying that this person had not a right to go to his office for his papers. The only question is whether or not he was going out of the way. Upon these affidavits I do not collect that there was any real deviation.” Pitt v. Coomes, supra, was cited, and Lord Chief Justice Tindal remarked that he could not see any substantial distinction between that case and the one then before the court; and all the other judges concurred.

In Selby v. Hills, 1 Moore & Scott, 253, also reported in 1 Dowl. Pr. C., 257, Lord Chief .Justice Tindal again said: “The only question to be considered is, whether the defendant was honestly using his privilege, or whether he only sets it up as a pretense to defeat a creditor. The rule is not to be scanned with too strict an eye; every reasonable intendment is to be made in favor of a party claiming exemption under it.”

In Ricketts et al. v. Gurney, 7 Price, 699, it appeared that the defendant went from London to Clifton, on the way to trial at Exeter, staying at Clifton two days to procure and sort his papers, and with his lawyer selecting such documents as were necessary to be used in the trial. The defendant was arrested at Clifton; but it was held that he was entitled to the' privilege, on the ground that the deviation was for a necessary purpose and the delay no more than -reasonable.

In Sidgier v. Birch, 9 Ves. Jr., 69, it was shown that for the purpose of an examination before a master in chancery, it was necessary for the defendant to see a deed which was in the hands of another party, who was hostile to him, and whom, therefore, he did not choose to see except in the presence of his solicitor, and failing to meet his solicitor, after waiting for several hours, was returning home for other necessary papers when he was arrested. Lord Chancellor Eldon discharged the defendant and said that the question in these cases is always whether the man was. bona fide engaged in the business he was called upon to execute.

It is claimed that the defendant in this case, being a non-resident of this state, is not within the privilege; but the statute extends the privilege to “all suitors,” nor is it restricted to going to, attending or returning from any particular court, and apart from the statute the immunity does not depend upon statutory provisions, but arises ex necessitate in the due administration of justice.

It does not appear that the defendant made an unreasonable deviation from a direct route to the place of trial, or that his stopping at Dayton was, under the circumstances, unreasonable or unnecessary, or that his tarrying on the way at that place was not in good faith or for any purpose wholly disconnected with the purpose of going to and attending the trial at Cincinnati.

The judgment of the court of common pleas quashing the service which was made upon the defendant, was therefore correct; and the judgment of the circuit court affirming the judgment of the court of common pleas is

Affirmed.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Bryant v. The American Bonding Company.

      Bond for faithful discharge of duties by public officer — Application introduced as evidence — Becomes part of bond — Bond to run from year to year — Mutual consent necessary to continuance— Officer refuses to assent — Premium not recoverable — Liability on bond ceases.

    1. A bond procured by a state officer to be issued by a bonding company to the state guaranteeing the faithful performance of duty by such officer, which is in terms indefinite as to duration, will, in the absence of any stipulation to the contrary, be regarded as remaining in force during the incumbency of such officer on his present term, and where the consideration for such bond moving from the officer to the company is the payment in advance by the officer of a specified annual premium, he will be liable to the company for such payment during the term for which the company is liable to the state on the bond.
    2. But where, in a trial to recover against the officer for an annual premium, the application is introduced in evidence by the company as constituting in part its right of recovery, that instrument becomes a part of the bond, and if its language, taken in connection with that of the bond, imports that the bond is to run indefinitely, one year at a time, providing payment of the annual premium is made, the contract will be treated as continuing only upon the condition of mutual assent by the parties, and if such assent is not had, the officer will not be liable to the company in such action.
    3. Because of the refusal by the officer to assent to a renewal and his refusal to pay an annual premium, the obligation of the company under the bond to the state for future conduct of the officer does not attach.
    (No. 10021
    Decided November 19, 1907.)
    Error to the Circuit Court of Wood county.
    The controversy originated in á suit before a justice of the peace. In its bill of particulars the plaintiff below, The American Bonding Company, of Baltimore, Maryland, alleged its corporate capacity and its authority to transact business in Ohio. It further alleged that June 16, 1903, the defendant, Edward S. Bryant, as colonel of the second regiment Ohio National Guards, made application to the plaintiff for a bond in the sum of $4,000, to run indefinitely, for an annual premium of twelve dollars; that defendant paid the first annual premium, and that at the end of one year an annual premium became due on said bond and application, which defendant has refused to pay, and asking judgment for the same and costs.
    By answer the defendant admitted the corporate capacity and right to do business in Ohio of the plaintiff; admitted the making of the application and the issuing of the bond and denied that the bond might be renewed and continued except upon mutual agreement between plaintiff and defendant ; admitted that he. paid the annual premium for the year ending June 16, 1904, and alleged that prior to the above date he notified the plaintiff that he did not desire a renewal and did not agree to such renewal or continuance of the bond after that date.
    The justice found for the defendant. Motion for a new trial was overruled and a bill of exceptions taken. On error to the common pleas by the Company the judgment was affirmed. These judgments were reversed by the circuit court, that court holding that the justice erred in overruling the motion for a new trial. Defendant below brings error. Further facts, bearing upon the issues, will be-found stated in the opinion.

      Mr. Wade H. Ellis, attorney general; Mr. W. H. Miller; Mr. C. R. Painter; and Mr. George H. Jones, for plaintiff in error.
    Bonds made by surety companies are insurance policies. People, ex rel., v. Fidelity & Casualty Co., 153 Ill., 25.
    The business of guaranteeing the fidelity of persons holding public or private places' of trust, and the performance by persons, firms and corporations of contracts, bonds, recognizances and other undertakings is “guaranty insurance.” People, ex rel., v. Rose, Secy., etc., 174 Ill., 310; 1 Joyce on Insurance, Section 12; Standard Dictionary, “Insurance”; Tebbets et al. v. Guaranty Co., 73 Fed. Rep., 95.
    The almost unbroken line of authority sustains the proposition that insurance contracts are to be construed favorably to the applicant or insured and against the insurer.
    With reference to guaranty bonds executed upon a consideration, and by a corporation organized to make such bonds for profit, the rule of construction applied to ordinary sureties is not applicable. The bond is in the terms prescribed by the surety, and any doubtful language should be construed most strongly against the surety and in favor of the indemnit), which the insured had reasonable ground to expect. Supreme Council Catholic K. of A. v. Fidelity & Casualty Co., 63 Fed. Rep., 58; Surety Co. v. Pauly, 170 U. S., 144; 2 Am. & Eng. Ency. Law, 2d Ed., 460.
    The application of plaintiff in error was for a bond that might run for an indefinite time, but such time was limited by the further provision that in order to continue to be alive it required each year a renewal by the parties.
    A renewal is generally held to be a new contract, upon the terms and conditions stated in the policy expired — the old application, in the absence of evidence to the contrary, serving as the basis of the new contract, and as if made at the date of the renewal. May on Insurance, Vol. 1, Section 70.
    The agreement to renew must be clear as well as complete. Loose and informal conversations between an agent and an insured will not bind the insurer. It must appear that the parties intended' to make a renewal agreement and understood that they had perfected the agreement. O’Reilly v. Assurance Co., 101 N. Y., 575; Mallette v. Assurance Co., 91. Md., 471; Taylor v. Insurance Co., 47 Wis., 365; Croghan v. Underwriters’ Agency, 53 Ga., 109; Giddings v. Insurance Co., 90 Mo., 272; Insurance Co. v. Beatty, 119 Pa. St., 6; Insurance Co. v. Walsh, 54 Ill., 164; King v. Insurance Co., 58 Wis., 508; Scott v. Insurance Co., 53 Wis., 238.
    From the foregoing authorities it must be conceded that in order that a contract of the kind in suit may be renewed, that each party to such contract must have agreed to the renewal.
    When plaintiff in error so notified the defendant company that he would not agree to a continuance of the- policy and refused to pay the premium for another year, the contract was determined.
    The renewal of the insurance bond depended upon two things, the payment of the premium by the plaintiff in error, and its acceptance by the defendant in error.
    There is no condition either in the application, agreement or bond that unless notice is given, that there is no intention to renew, that such bond or policy is renewed. Guarantee Co. v. York et al., 3 Hurl. & Norman Eng. Exch. Rep., 588; Guarantee Co. v. Froane, 7 Hurl. & Norman Eng. Exch. Rep., 3.
    An examination of the application made by plaintiff in error discloses that his proposal was that such insurance policy or bond was subject to renewal, one year at a time, and the policy or bond requested is only a continuing one' in the sense that it is good for one year, but may be continued indefinitely from year to year, if the parties mutually are willing. Fidelity & Casualty Co. v. Lawler et al., 64 Minn., 144; De Jernette v. Fidelity & Casualty Co., 33 S. W. Rep., 828 Insurance Co. v. Walsh, 54 Ill., 164; Brady v. Insurance Co., 11 Mich., 425.
    In contracts of life iusurance, it has been considered that the annual premium not being paid, to authorize a recovery, something must have taken place subsequently between the parties, which would amount to a new contract. Scott v. Insurance Co., 53 Wis., 238; Want et al. v. Blunt, 13 East., 183; Acey et al., Exrs., v. Fernie, Secy., 7 Meeson & Welsby’s Rep., 150; Insurance Co. v. Ruse, 8 Ga., 534.
    In the last case decided, it was held that, the receipt of premium and other acts might be proper evidence of a new renewal contract between the parties; see also Buckbee v. Insurance, A. & I. Co., 18 Barb., 541.
    If there is a failure to pay at the time when by the terms of the policy it is to be paid, the risk is at an end. Robert v. Insurance Co., 1 Disney, 355, 2 Disney, 106; Insurance Co. v. French et al., 2 C. & S. C, 321, 30 Ohio St., 240.
    We believe it has been shown that if the transaction out of which this action is claimed to have 'arisen is that of an application for and the issuance of an insurance bond, that plaintiff in error had the option of refusing to renew such insurance bond or policy at any of the yearly stated periods referred to in the application, and that there could be no continuation of said insurance bond without mutual assent and action of the parties thereto.
    In considering the relations between plaintiff in error and defendant in error as fixed by the application and their agreement, considerable light is thrown upon their status by various courts in construing leases. Giaggiano v. Giallorenzi, 57 N. Y. Supp., 2; Salomon v. Weisberg, 61 N. Y. Supp., 60; Halloway v. Schmidt et al., 67 N. Y. Supp., 169; Pugsley v. Aiken et al., Exrs., 11 N. Y., 495; Doe v. Porter, 3 T. R., 15; Burton on Real Property, 277; Doe v. Dixon, 9 East, 15; Goodnight v. Richardson, 3 T. R., 462.

      Mr. Earl D. Bloom and Mr. Edward Beverstock, for defendant in error.
    The general rule is that the duration of the bond to secure faithful performance of the duties of an office is co-extensive with the 'duration of such office. 5th Cyc., 773; South Carolina Society v. Johnson, 1 McCord, 41; 10 Am. Dec., 644; Poole v. Cox, 9 Iredell’s Law, 69; 49 Am. Dec., 410.
    In the case at bar here under consideration, inasmuch' as the plaintiff in error continues to exercise the duties of his office, we think the bond continues in force, and the company would be liable for any default made by the plaintiff in error; and if it is liable, then the plaintiff in error must pay the premium.
    The defendant in error became surety upon a contract not of its own making, but one that was stipulated and provided for by the party benefited — the State of Ohio.
    The courts in construing the liability under these circumstances have stated with approval the rule of construction relating to ordinary surety, whether entered into gratuitously or for a valuable consideration. Surety Co. v. Cement Co., 9 Kan. App., 8; 57 Pac. Rep., 237; State, ex rel., v. Hill, 88 Md., 111; 41 Atl. Rep., 61; Archer v. State, 74 Md., 443; 28 Am. St. Rep., 261; 22 Atl. Rep., 6; Savings & Loan Assn. v. Fidelity & Guaranty Co., 197 Pa. St., 177; 46 Atl. Rep., 910; United States v. Bonding & Trust Co., 89 Fed. Rep., 925; 32 C. C. A., 420; United States v. Surety Co., 92 Fed. Rep., 549; 34 C. C. A., 526; Cowles v. Fidelity & Guaranty Co., 98 Am. St. Rep., 844.
   Spear, J.

By the bill of exceptions it appears that at the trial the plaintiff introduced in evidence the application and the bond. It was thereupon admitted by the parties that prior to June 16, 1904, defendant notified the Company that he did not desire a renewal of the bond; that the defendant was and still is colonel of the second regiment, Ohio National' Guards, and that he has given no bond since the giving of the bond in question; that his term of office has been continuous, and that the defendant is required by the laws of Ohio to give bond to the state for the .faithful performance of his duties. No other or further evidence was offered.

One of the grounds for new trial was that the finding and judgment of the justice was against the weight of the evidence; but the record presents simply a question of law, and no duty of weighing evidence devolved upon the circuit court. Nor are we here called upon to give construction to the statute of the state with reference to the duties of a colonel of an Ohio regiment with respect to the property of the state, or otherwise, or his duty with respect to the giving of a bond of the character here shown, the admission of the record being that such officer was, by the laws of the state, required to give bond for the faithful performance of his duties; and no further reference to the statute is here necessary, except to say that the claim is made by plaintiff in error that the statute does not give to the colonel of a regiment the custody or control of the property of the state enumerated in the bond, nor of the public funds therein mentioned, and that the bond in these respects was prepared under a misapprehension of -the Company’s real liability with respect to the official conduct and responsibility of the officer; and while the statute requires some sort of a bond of the colonel of a regiment, it does not require the character of bond imposed by the Company on the officer in this instance. Because of this error, it is insisted, the premium required is far in excess of an amount adequate to insuré the actual risk incurred; and this fact may account for the officer’s disinclination to renew the bond.

The question presented, therefore, is: What is the legal effect of the bond, taken in connection with the application, each paper being an essential part of the transaction between the parties?. Both having been introduced in evidence by the Company, we are relieved of consideration of the query, which might otherwise arise, whether or not the application is part of the bond, for the act of the Company in basing its right of recovery in part upon that instrument, incorporates it for all the purposes of the case. As tersely stated by counsel for the defendant in error, the concrete question is: Is the plaintiff in error liable to pay a premium at the end of the first year, if he continues in office and gives no other bond, or is he absolved from such payment on giving notice, before the expiration of the year, that he does not desire a renewal of the bond? The justice and the common pleas answered that he was not so liable; the circuit court answered that he was. The contention of counsel in support of the judgment of the circuit court is, in brief, that this being a surety bond guaranteeing the faithful discharge of his duties by an officer, of necessity must be coextensive with the duration of such office. Hence, as Colonel Bryant has been, and'still remains such officer, the Company is bound to the state to make good its guaranty, and this continuing obligation implies necessarily the yearly payment of the premium by the officer; otherwise the Company would be subject to loss without corresponding consideration or benefit accruing to it. As a proposition at large, this statement will be assented to, because if the contract, when properly construed, imposes a continuing liability, the duty to pay premiums would seem to follow. But the question remains, What is the proper construction of this contract? And first, what is the nature of the contract? Is it one simply of suretyship, one of those known as voluntary contracts, or is it rather one of the class issued for a money consideration and because of a desire for pecuniary gain? If the former, then it is one wherein the surety is regarded as a favorite of the law, and all doubtful questions to be resolved in his favor; if the latter, then he is regarded as an insurer, whose contract, being drawn by the surety himself, and for a money consideration, is, if ambiguity exists in the language, to be resolved most strongly against the surety. Supreme Catholic Knights of America v. Fidelity & Casualty Co., 11 C. C. A., 96; Mechanic's Savings Bank & Trust Co. v. Guarantee Co., 68 Fed. Rep., 459; Cowles v. U. S. Fidelity & Guaranty Co., 32 Wash., 120. Manifestly, the simple fact that a premium is paid by the officer establishes beyond question that the contract does not belong to the former class.

Coming now to an examination of the contract — the application for the bond and the bond itself — we find that the applicant, in consideration of the issuing of the bond, agrees to pay the Company an annual premium in advance of twelve and three dollars (though why the latter sum is named does not appear), and binds himself, his heirs, etc., to indemnify the Company against all loss, etc., resulting from his default, etc., which the Company may sustain by reason of having executed said bond, or any renezval or continuation thereof. The application contains this further significant clause. To the question to be answered by the applicant respecting the duration of the bond, “How long to run?” the answer is, “Indefinitely, one year at a time, renewed.” And the character of the risk, as given' in the application, is: “Faithfully discharge duties of office of colonel of 2d Infantry, O. N. G.” No other clause of the application in any way qualifies these statements. The bond is as follows:

“Know all men by these presents: That we, Edward S. Bryant, as principal, and The American Bonding Company, of Baltimore, as sureties, are held and firmly bound unto the State of Ohio, in the penal sum of four thousand dollars ($4,-000.00), for the payment of which, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated this 16th day of June, 1903.
“The condition of the above obligation is such, That, whereas, the said Edward S. Bryant, who is commandant of 2d Infantry, Ohio National Guard, has, as commandant of said regiment, been intrusted with property of the State of Ohio, including all ordnance stores, clothing, camp and garrison equipage, in possession of said organiza•tion, together with public funds coming into his hands as such officer, arid for such state property and funds as may hereafter be issued or placed in his charge as said commanding officer. Now, if the said property or public funds, or either, shall be delivered to the said Edward S. Bryant, and the same shall be safely kept and at all times in readiness for immediate úse, in a place appropriate for that purpose, and no part of the said ■ public property permitted to be used or taken from such place of deposit for any other purpose than for the use and benefit of such organization or other lawful public service; and if said property and funds shall be turned over to his successor in office (first causing new bonds to be executed by his successor, to the acceptance of the adjutant-general), or shall be returned to the state 'in good condition, and shall at all times be subject to the orders of the governor of Ohio, then this obligation shall be void; otherwise to be and remain in full force and virtue in law.
“Edward S. Bryant. (Seal.)
“American Bonding Companv of Baltimore.
“(Seal.)”

The bond was deposited with the adjutant-general of the state.

It will be noted that there is no definite term stated for the duration or life of the obligation. That feature is left entirely to inference. It therefore cannot be determined in this case, except by reference to the application. There are three parties to the contract — the applicant, called in legal parlance the “risk”; the state and the Company. The consideration moving to the Company from the “risk” is the annual premium-to be paid. The bas'is of the right of the state under the contract might rest upon the principle of a contract made for its benefit by another, which it has accepted; but it can also rest upon the further consideration of the employment by it of the officer, such employment giving also to the state the control of the conduct of the officer. The state, under these facts, being a party to the contract, reaping advantage from it, should be held to have had knowledge of the entire contract, and to have accepted the indemnity subject to any infirmities attaching to the transaction. In other words, it would take cum onere. . Then what follows ? The applicant, the “risk,” could not be heard to claim that the bond would remain in force after his refusal to pay the premium, and it is difficult to see how the beneficiary, the state, could successfully make that claim. One thing is certain: The contract is, as to duration, at least ambiguous. The bond contains no express declaration on the subject, and the application, as hereinbefore recited, justifies the understanding by the applicant that its continuance depended upon a'renewal at the end of the year by the payment of the annual premium; and it is hardly conceivable that the Company, when it accepted the application and issued the bond, in good faith supposed that it was to be bound during all the years that the officer might serve as colonel, when at the same time the annual premiums, the basis of its contract, were not being paid, and that its only recourse would be to resort to an action to recover. The contract is silent as to the party who may exercise the option to continue or terminate the contract; but clearly, if such right belongs with'anyone, it must belong to the one who has procured the contract and is obliged to pay the premiums.

It is not necessary in this case to carry the rule respecting insurance contracts as far as it has been held in many reported cases. It is sufficient to apply to the contract the modified rule, clearly recognized in this state, viz.: that where clauses of such a contract are susceptible of two interpretations, which seem equally fair, that should be preferred which is least favorable to the company; but, like other contracts, they should receive a reasonable construction in order to carry out the presumed intention of the parties as expressed by the language used.

We are of opinion, therefore, • that a bond of this character, indefinite * as to duration, will, standing alone, be held to remain in force during the incumbency of the officer on his present term, and the officer will remain liable for the payment of annual premiums so long as liability to the state on the bond continues. But where the application has beeri made a part of the bond, as in this case, and its language taken in connection with that of the bond imports that while the bond may run indefinitely, but one year at a time, and continued providing the annual premium is paid, the contract should be regarded as continuing only upon the condition of mutual assent, and if such assent is not had, the officer will not be liable for the premiums. And, further, that in case the officer refuses to assent to a continuance of the contract, liability for future conduct of the officer does not attach.

These conclusions require that the judgment of the circuit court should be reversed and the judgment of the common pleas affirmed.

Reversed.

Shaucic, C. ]., Price, Crew, Summers and Davis, JJ., concur.


author: Summers, J.

text:
    Sears et al. v. Sears et al.

      Intention of testator in wills — Will not prevail — If will not executed according to statute — Signature of testator must be. properly placed — Section 5pu5, Revised Statutes. '

    1. In the interpretation of the statute regulating the execution of wills the intention of the Legislature controls, and a will that is not executed'as required*by statute is invalid notwithstanding the intention of the testator. B
    2. A will is not invalid because it is partly in print. The word “writing” in Section 5916, Revised Statutes, includes printing.
    3. A will is not signed at the end thereof by the party making the same, when it is written by the party making it, upon a printed blank form containing a testimonium clause with blanks for the name of the place and the date of execution, which he fills, and immediately following this a blank line for the signature of the maker, which he leaves blank, although he has written his name in the attestation clause, immediately following the testimonium clause, in a blank left for the name of the testator and may have intended such act as a signing.
    4. On the trial of an action to contest the validity of a will, when it appears on the face of the will that it was not signed at the end thereof as required by statute, it is not error for the trial judge to direct a verdict that the writing is not a valid will.
    (No. 10122
    Decided November 19, 1907.)

      Error to the Circuit Court of Cuyahoga County.
    On the 6th day of June, 1903, Arminda S. Nicholson, of Lakewood, Cuyahoga County, Ohio, wrote her last will and testament on a printed blank form of will.
    Following the last item of the will is a blank space the full width of the paper and about six inches in length. Following this blank space is a printed blank testimonium clause, as follows: In testimony whereof, I have set my hand to this my last will and testament, at ......, this . . . day of ......, in the year of our Lord One Thousand .... Hundred and......
    Then follows a blank line extending about half way across the width of the page for the signature of the testator. Then there is a heavjr line extending clear across the page, and following this heavy line appears the following printed blank attestation clause:
    The foregoing instrument was signed by the said ......... . . in our presence, and by ...... published and declared as and for......last will and testament, and at......request, and in ...... presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses, at ........, this .... day of ......, A. D. 1....
    ............, resides at...........
    ............, resides at...........

      The blanks in this testimonium clause and attestation clause she filled in, and they then read as follows, including the signatures of the two witnesses:
    “In testimony whereof, I have set my hand to this my last will and testament, at Lakewood, Ohio, this Sixth day of June, in the year of our Lord One Thousand Nine Hundred and Three.

      U }>

    “The foregoing instrument was signed by the said Arminda S. Nicholson in our presence, and by her published and declared as and for her last will and testament; and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses, at Lakewood, Ohio, this Sixth day of June, A. D. 1903.
    “J. W. Southern, resides at Lakewood, O.
    “Julia K. Southern, resides at Lakewood, O.”
    On the 30th day of April, 1904, she died, and on the 3d day of May, following, her will was presented to the probate court of Cuyahoga County for admission to probate, and it was admitted to probate by that court.
    In June, 1904, the plaintiffs in error filed their petition in the court of common pleas of that county, asking that the will be set aside for the reasons, among others, that it was not handwritten or typewritten; that it was not signed by the said Arminda S. Nicholson; that it was not signed by her at the end thereof, nor by any person in her presence by her express direction.
    Answers were filed, and on January 4th, 1905, the court made the following order:
    “January 4, 1905. To Court: The motion by the defendants to require the plaintiff to make his petition more definite and certain, and praying for an order directing an issue to be made upon the' record in this cause,' is heard and refused as to the request to make more definite and certain, and granted as to the request to direct an issue to be made upon the record. Wherefore, it appearing to the court that the plaintiff in this case seeks to set aside a certain paper writing purporting to be the last will and testament of Arminda Nicholson, deceased, late of the county of Cuyahoga,' Ohio, which has been admitted to probate in said county, according to the statute in such case made and provided, and no issue being made up by the pleadings, it is now .ordered that the validity of said will be, and it hereby is, put in issue between the parties hereto, and that it be ascertained, by the verdict of a jury, whether said writing is, or is not, the last will 'and testament of said Arminda Nicholson, deceased.”
    In October, 1905, the case was tried by a jury. The defendants offered in evidence the will and a certified copy of the order of probate, and rested. The plaintiffs -then requested the court to direct the jury to return a verdict that the writing produced as the last will of Arminda S. Nicholson is not her valid last will and testament, for the reason that the testimony is insufficient to sustain the alleged will. The defendants then asked leave to withdraw the submission of the case for the purpose of offering additional evidence, and they then .offered to prove that the words, “Arminda S. Nicholson,” in the attestation clause, were the handwriting and signature of Arminda S. Nicholson, and that after her death the said will was found among her private papers, in a box, and inside of an envelope upon which was endorsed in her own handwriting, the words, “Last Will and Testament of Arminda S. Nicholson.” This testimony the court rejected, and upon the plaintiffs renewing their motion, the court directed the jury to return a verdict finding that the paper is not the last will and testament of Arminda S. Nicholson, and the jury returned a verdict as directed. Motion for a new trial was then filed and overruled, and judgment entered that the paper writing was not the last will and testament of said Arminda S. Nicholson.
    On error the circuit court reversed.

      Mr. Thomas Beer and Mr. S. W. Bennett, for plaintiffs in error.

      We first call attention to several sections of the Revised Statutes bearing upon this case: Who may make a will, Section 5914; lawfully executed, Section 5916; examination of witnesses to will, Section 5926; admission of will to probate, Section 5929; filing and recording, ■ Section 5930; contest of will, Section 5933; in case of contest, papers sent to common pleas, Section 5936; how will contested, Section 5858; parties, to the action, Section 5859; certificate of contest to probate court, Section 5860; issue to be made up, Section 5861; conduct of the trial, Section 5864; testimony upon the probate court is competent, Section 5863; order of probate prima facie evidence, Section 5862.
    The fair and honest construction of Section 5916 is that a last will shall be in writing — the writing to be done either by hand or by a typewriter. It does not mean done by a printing press. It includes hand-written and type-written; it excludes printing. Black on Interpretation of Laws, 147; Sedgewick on Statutory Construction, 31, note; Mack et al. v. Brammer et al., 28 Ohio St., 509; Morningstar et al. v. Selby et al., 13 Ohio, 363; Broom’s Legal Maxims, 515.
    Whenever a statute limits a thing to be • done in a particular form, it necessarily includes in itself a negative, viz.: that the thing shall not be done otherwise. 19 Cyc., 26; McNeill, Assignee, v. Hagerty, Auditor, 51 Ohio St., 264; Johnson v. Jordan, 2 Metc. (Mass.), 241; District Township v. City of Dubuque, 7 Iowa, 262; City of New Haven v. Whitney, 36 Conn., 374.
    The disposition of it by last will is a privilege conferred by law, to be exercised in the mode prescribed by law. In such cases it would seem that the law is mandatory. Black’s Interpretation of Laws, 339 and note.
    May he give and bequeath by last will and testament not “lawfully executed”? No. It must be executed in the mode prescribed by Section 5916. Can the court properly hold that section to be directory merely? The state has conferred the privilege of giving and bequeathing property by last will,- and has prescribed how it shall be done— “in writing, signed at the end thereof.” Bouvier’s Law Dictionary, “Writing,” “Handwriting” and “Typewriting.”
    “Shall be in writing — may be in hand-writing or typewritten.” It would have been an easy matter for the legislature to say: In writing or print; and may be in hand-writing, typewritten or printed.
    “The words shall and may, in general acts of the legislature, are to be construed imperatively.” Bouvier’s Law Dictionary, “May”; Lessee of Swazey’s Heirs v. Blackman et al., 8 Ohio, 18; Black on Interpretation of Laws, 337, 339; Sedgewick on Statutory Construction, 325, 326, 327; Supervisors of Niagara v. People, 7 Hill, 511.
    When the form is not observed, it is inferred that the act is annulled. Bouvier’s Law Dictionary, “Maxim”; Sedgewick on Construction of Statutes, 275; Hicks et al. v. Whitmore, 12 Wend., 548.
    It “shall be signed by the party making the same, or by some other person in his presence, and by his express direction.” Section 5916, Revised Statutes.
    The signing required by Section 5916, Revised Statutes, is the affixing' of the signature of the testator for -the purpose of validating the instrument. The law directs him how and where to sign. Bouvier’s Law Dictionary, “Sign”; Encyclopedia Dictionary, “Sign.”
    An Ohio will must bear the signature of the testator at the end thereof. Section 5916, Revised Statutes. No odds how particularly and exactly it may conform to all the other requirements of the statute; yet, lacking a signature, it is no will.
    With all due deference to the attestation clause and the attesting witnesses, she did not sign it at all within the purview of Section 5916, Revised Statutes, for the reason that she did not sign it at the end thereof.
    Because the alleged will is not in writing — that is, not altogether hand-written or typewritten— but is partly printed, and because it is not signed either at the end thereof or anywhere else upon the face of the paper, it was not “duly executed,” and for want of due execution was not entitled to be admitted to probate under Section 5929, Revised Statutes. “Duly,” in legal parlance, means “according to law, or some rule of law; legally, on proper authority. It includes form and substance.” 14 Cyc., 1119; Brownell, v. Town of Greenwich, 114 N. Y., 518; 4 L. R. A., 685.
    “Duly executed,” in Section 5929, and “lawfully executed,” in Section 5914, mean the same thing, and both refer to the mode of execution prescribed in Section 5916.
    Unless the name of the testator appears affirmatively, from something on the face of the paper, to have been intended as a signature, it is not a sufficient signing under the statute. Ramsey et al. v. Ramsey, Exr., 664; Warwick v. Warwick et al., 6 L. R. A., 775.
    It appears that the restrictions imposed upon a testator when executing his will in the State of New York are, in substance, the same as in the law of Ohio upon the same subject. 2 Revised Statutes, 63, Section 40 (2 Revised Statutes, Banks & Bros., 9th ed., 1877).
    The will must be subscribed by the testator at the end thereof. In re Will of O’Neill, 91 N. Y., 516; In re Conway’s Will, 124 N. Y., 455; 11 L. R. A., 7g6; In re Hewitt’s Will, 91 N. Y., 263; In re Will of Whitney, 153 N. Y., 259; In re Will of Andrews, 162 N. Y., 1; 48 L. R. A., 665; In re Blair’s Will, 84 Hun, 582; Timoney v. Booth, 38 N. Y. St. Rep., 72; In re Gedney’s Will, 41 N. Y. Supp., 205.
    A party seeking to establish an instrument as a will must prove that all the requirements of the statute were substantially complied with in its execution. Lewis v. Lewis, 1 Kernan, 223; Chaffee v. Missionary Society, 10 Paige, 86; Remsen v. Brinckerhoff, 26 Wend., 331.
    Section 5, Revised Statutes of Kentucky, is similar to Section 5916, Rerdsed Statutes of Ohio, requiring the testator to sign at the end of the will.
    It is held under this provision of the statute of that state, both the name of the testator and the witnesses must appear at the foot or end of the will. Soward v. Soward, 1 Duvall, 126.
    We now invite attention to the holding of this court in a number of cases which sustain our contention: Raudebaugh et al. v. Shelley et al., 6 Ohio St., 314; Baker v. Baker et al., 51 Ohio St., 222; Glancy et al. v. Glancy et al., 17 Ohio St., 135; Irwin et al. v. Jacques et al., 71 Ohio St., 395; Wagner v. Zeigler, 44 Ohio St., 59; Rood on Wills, Section 270.
    It is plain that when Sections 5862 and 5864, Revised Statutes, were enacted, the legislature had in mind a paper writing in form a will. A paper signed and attested. The very words lead to that conclusion, and none other. When they said attestation, they meant a paper on its face attested. When they said execution, they had in mind a paper signed.
    Section 5864 required the contestees to offer the will and probate and rest. The will and order of probate upon the will — that is, Mrs. Nicholson’s will — when offered in evidence, would throw the burden of proof upon -the plaintiff in the trial court. Neither the will nor a will was offered in evidence, An order of probate not accompanied by a will could not be prima facie evidence of the due execution or attestation of a will.
    Where is “the end thereof” of this so-called will? Is it not right after the last word of the last dispositive clause, some ten or- more lines above and before the subscribing clause? We think it is, and that there it should have been signed to make it valid.
    That a subscribing clause is no essential part of a will, and that at the end of the last dispositive clause is where it should be signed, is clearly recognized, if not declared, in this language in Irwin et al. v. Jacques, 71 Ohio St., 395.
    Section 5864, Revised Statutes, provides: “He shall offer the will and probate and rest; the opposite party shall then offer his evidence.”
    Is not the pointing out patent, incurable defects in the paper offered as the will, an offering of evidence so as and sufficient to comply with the letter of the "statute, and overcome the technical “prima facie” case?

      It'is true that after a will has been admitted to probate and is contested under the statute in the court of common pleas, the will and the record of its probate make a prima facie case for the contestees, and the burden is upon the contestants to overthrow the will, and that the ground of contest, as a general rule, is to be determined by the jury. But the court does not lose its jurisdiction to decide all questions of law that may arise' on the trial; among which questions of law it would seem would be the admissibility of paper called a will, as a will. Irwin et al. v. Jacques et al., 71 Ohio St., 395.

      Messrs. Finley & Galienger; Messrs. Carr, Stearns & Chamberlain; Messrs. Smith, Taft & Arter; Messrs. M. B. & FI. H. Johnson; Messrs. Hogan & Parmely; Messrs. Weed, Miller & Na-son; Mr. R. V. Sears and Messrs. Treadway & Marlatt, for defendants in error. .
    A will admitted to probate, as provided in Sections 5926 and 5929, unless set aside by proceedings to contest the same, as provided in Section 5933) is a valid last will and testament against the world, and can not be collaterally questioned or disputed, and under it passes the title to real and personal property. Section 5933, Revised Statutes.
    When proceedings are brought to contest a will, the statute provides how the. issues shall be made up (Section 5661), which in this case was by an order on the journal, and the only question that can be submitted to a jury is whether the paper writing, admitted to probate and produced on the trial, is or is not the last will and testament of the testator? Dew et al. v. Reid et al., 52 Ohio St., 520; Stacey et al. v. Cunningham, Exr., 69 Ohio St., 176.
    The statute provides how the case shall be tried. Sections 5862 and 5864, Revised Statutes.
    So we maintain that when we complied with the provisions of the statute, by offering the will and probate in evidence, and rested, we were entitled to a verdict, and that we then made a prima facie case, requiring some testimony to overcome it, and that the court had no jurisdiction or power to decide whether that prima facie case was sufficient or not," but that it should have been submitted to the jury, with a direction to return a verdict for the will.
    We, having made a prima facie case, by the introduction of the will and probate, it was the plain duty of the court to have instructed the jury that, the contestants having offered no testimony, they must return a verdict finding that the paper-writing is the last will and testament of decedent. Walker et al. v. Walker et al., 14 Ohio St., 157; Mears et al. v. Mears et al., 15 Ohio St., 90; Bolles et al. v. Harris et al., 34 Ohio St., 31; Brown, Gdn., v. Burdick, 25 Ohio St., 260; West, Exrx., v. Knoppenberger, 16 Cir. Dec., 168.
    Whether a will is signed at the end thereof, within the meaning of the statute, is to be determined by the test whether there is any dispositive matter following the signature. If there is not, it is at the end thereof, though it may not be at the end of the piece of paper on which the will stands.

      If there is dispositive matter following the signature as part of the will of testator, it is not at the end thereof. Baker v. Baker et al., 51 Ohio St., 217; Irwin et al. v. Jacques et al., 71 Ohio St., 395.
    When the signature, as in the will in question, follows the testimonium clause, and there is nothing after that of a dispositive nature whatever, it is valid. Younger v. Duffie, 94 N. Y., 535; In re Will of Gillman, 38 Barb., 364.
    The attestation clause is not only not a part of a will, but is wholly surplusage; so that in determining whether the signature of Arminda S. Nicholson is signed at the end thereof, we may treat the whole attestation clause as surplusage, which would leave her signature undoubtedly at the end of the will. Jackson v. Jackson et al., 39 N. Y., 153;
    The signature having been subscribed at the end, in the usual way ip which instruments are finally authenticated, the legal presumption arises that the signature is written for the purpose of finally executing the document. In re Will of Booth, 127 N. Y., 109.
   Summers, J.

In this state the right of disposing of property by will is given, and the manner of exercising it is prescribed by statute. The provisions of the Revised Statutes bearing upon the questions to be determined, may be briefly summarized as follows: Section 5914 prescribes who may make a will; Section 5916, providing how a will shall be executed, is as follows: “Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be hand-written or typewritten; and such will shall 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, and shall be attested and' subscribed, in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.” Section 5926 provides, when application has been made to admit a will to probate, that the probate court shall cause the witnesses to such will, and such other witnesses as any person interested in having the same admitted to probate may desire, to come before it, and that the witnesses shall be examined in open court and their testimony reduced to writing and filed. Section 5929 is as follows: “If it shall appear that such will was duly attested and executed, and that the testator, at the time of executing the same, was of full age and of sound mind and memory, and not under any restraint, the court shall admit the will to probate.” Section 593° provides that when admitted to probate the will shall be filed in the office of the probate judge and recorded, together with the testimony. Section 5933 provides that if no person interested shall contest the will within two years, the probate shall be forever binding, saving to infants and persons of unsound mind or in captivity, a like period after the disabilities are removed. Section 5936 enacts that whenever the probate court shall receive from the clerk of the court of common pleas a certificate that a petition has been filed in the court- of common pleas to contest the validity of any will recorded in the probate court, the probate court shall forthwith transmit to the court of common pleas the will, testimony and all papers relating thereto, with a copy of the order of probate and a certificate under the seal of the court. Section 5858 provides that a person interested in a will admitted to probate may contest the validity thereof in a civil action in the court of common pleas of the county in which such probate was had. Section 5859' provides who shall be parties. Section 5861 provides how an issue shall be made up, whether the writing produced is the last will or codicil of the testator or not, and that this issue shall be tried by a jury, and that the verdict therein shall be conclusive, unless a new trial be granted or the judgment be reversed or vacated. Section 5864 provides that “the party sustaining the will shall be entitled-to open and close the evidence and argument; he shall offer the will and probate, and rest; the opposite party shall then offer his evidence; the party sustaining the will shall then offer his other evidence; and rebutting testimony may be offered as in other cases.” Section 5862 provides that on the trial of such issue, the; order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil.

The first contention is that the will is not a valid will because it is partly in printing.

“Part Third” of the Revised Statutes includes Section 5916, and Section 4947 provides that in the interpretation of Part Third, unless the context shows that another sense was intended, the word “writing” includes printing. Before the amendment of Section 5916, in 1895, 92 O- L., 189, that section did not contain the words “and may be hand-written or typewritten,” and the law then was that a will might be written or printed. Counsel contend' that since the amendment the context shows that another sense was intended, and that writing means only hand-written or typewritten, and that the effect of the amendment was not merely to authorize a typewritten will, but also to exclude a printed will. Typewriting has come into general use since the revision of the statutes in 1880, and the manifest intention of the legislature was to authorize its use in addition to handwriting and printing in the making of wills, and not to substitute typewriting for printing; so that a will is not invalid because it is partly in print.

The next question is, is the will signed at the end thereof by the party making the same? By the Act of 1816, 2 Chase’s Statutes, 929, and the Act of 1831 (29 O. L., 242), wills were required to be in writing, and signed by the party making the same, and not until the Act of 1840 (38 O. L., 120) took effect were wills required to be signed at the end thereof. This requirement is assumed to have been suggested by the English statute of wills, passed in 1837, although such a requirement had been previously enacted by statute in New York and in Pennsylvania. The English statute is to be found in 1 Vict.,-c. 26. Section 9 of that act provides that no will shall be valid unless “it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction.” In Williams on Executors, 107 (7 Am. ed.), the learned author, speaking of this requirement, says:

“The will is required by that act to be signed ‘at the foot or end thereof.’ The Statute of Frauds merely requires that the will shall be ‘signed’; and it was held that a will in the testator’s own handwriting, commencing, T, John Styles, do declare this to be my last will, etc.,’ was sufficiently ‘signed’ within that statute, although not subscribed with his name. With a view, perhaps, to prevent future controversy as to whether a will so signed is a complete and perfect instrument, the statute of Victoria required that the signature of the testator shall be at the foot or end of the will.
“But questions of this kind do not appear to be altogether excluded by the operation of this enactment. And a new ground of contest arose out of it, as to. what may be considered a signing of the will at the end or foot thereof.
“Doubts arose whether a signature by the testator in the body of the testimonium or attestation clause was sufficient; and also, whether a signature below the latter clause, when it runs beneath the conclusion of the will, was a compliance with the act. On the question whether the will was well executed, if there was a folank space between the conclusion of the will and the signature of the testator, a lamentably large number of points and decisions occurred-. In the earlier cases Sir H. Jennor Fust put a very liberal construction on this part of the act. But afterwards that learned judge, in concurrence with the Judicial Committee of the Privy Council, felt it necessary to take a more rigid view of this enactment, on the ground that it was intended to prevent any addition being made to the will after the deceased had executed it. And accordingly probate was refused in a great number of subsequent cases on this objection, and the intention of a great many testators unfortunately defeated.
“This led to the passing of the Stat. 15 Vict., c. 24.”

The amendatory act passed in 1852, 15 Vict., c. 24, specifies with much particularity what shall be, respecting the position of the testator’s signature, the foot or end' of the will; but as no similar changes were made here, the provisions of that act can not aid in the interpretation of our statute.

The object of this requirement was the same here as in England — to insure the identity of the instrument, and to prevent fraudulent additions to or alterations of the instrument. Glancy et al. v. Glancy et al., 17 Ohio St., 135; Baker v. Baker et al., 15 Ohio St., 222.

Following the English statute, many of the states enacted similar requirements. In Pennsylvania, the earlier statute of 1833 contains such a requirement, and in Wineland’s Appeal, 118 Pa. St., 37, where a will signed by the testator, but containing a clause, immediately following the signature, and appointing executors, was under consideration, Paxson, J., says: “Our act of 1833, as well as the statute of Victoria, are in part borrowed from the British statute of frauds, two sections of which have been so evaded by judicial construction as to be practically repealed. We do not propose that the Act of 1833 shall meet with the same fate. The legislature have laid down a rule so plain that it can not be evaded without a clear violation of its terms. No room is left for judicial construction or interpretation. It says a will must be signed at the end thereof, and that’s the end of it.”

The statute of New York enacts that every last will' and testament of real or personal property, or both, shall be subscribed by the testator at the end of the will. In reviewing the decisions in that state in Matter of Andrews, 162 N. Y., 1, Bartlett, J., says: “In Sisters of Charity v. Kelly, 67 N. Y., 409, it was held that the provision of the statute requiring the testator to subscribe 'at the end of the will’ means the end of the instrument as a completed whole; and whére the name is written in the body of the instrument, with any material portion following the signature, it is not properly subscribed, nor can it be claimed that the portion preceding the signature is valid as a will.

“In Matter of O'Neil, 91 N. Y., 516, a printed blank was used, and the formal commencement was printed on the first page, and the formal termination printed at the foot of the third page. The entire blank space was filled with writing, and, apparently for want of room, a portion of a paragraph containing material provisions was carried over to, and the paragraph finished at, the top of the fourth page. The two portions were not, however, sought to be connected by means of a reference, or anything indicating their relation to each other. The name of the testator was written at the end of the printed form, and the names of the witnesses written below the formal attestation clause on the third page. This court held that there was no legal subscription of the will, and affirmed the judgment denying probate.

“In Matter of Conway, 124 N. Y., 455, a blank form was used, the whole of which was upon one side of the paper. A space was left for the dispositions to be made, preceded by the words, T give, devise and bequeath my property as follows.’ The blank space was filled up by three complete devises. At the end of the last were underlined, in parentheses, the words, ‘Carried to back' of will.’ Upon the back of the sheet was written the word, ‘Continued.’ Following it were various bequests, and then the words, ‘Signature on face of the will.’ The signature of the testator appeared at the end of the testimonium clause on the face of the paper, and those of the witnesses under the attestation clause. It was held by the Second Division of this court that there was not such a subscription and signing by the testator as required by the statute, and that the will had been improperly admitted to probate.

“In Matter of Whitney, 153 N. Y., 259, it was held that a will drawn upon a printed blank, covering only one page, and signed by the t^tator and subscribing witnesses at the foot of the page, is not subscribed by the testator at the end of the will, as required by the statute, when the blank space in the printed form is filled up by subdivisions marked, respectively, ‘First’ and ‘Second,’ followed by the words, ‘See annexed • sheet’; and additional subdivisions, marked, respectively, ‘Third’ and ‘Fourth,’ are written on a separate piece of paper attached to the face of the blank, immediately over the first and second subdivisions, by removable metal staples. It was held that the question presented was not an open one in this court, and that the will was not legally subscribed.

“In Matter of Blair, 84 Hun, 581, this court affirmed the judgment of the general term, First Department, on the opinion below, which reversed a decree of the surrogate’s court admitting the will to probate. This instrument consisted of eight pages. The testator signed at the bottom of the seventh page, and the witnesses signed at .the end of a proper witnessing clause at the top of the eighth page. After the place for the signatures of the witnesses, but before they were actually signed or the will executed, a clause was added directing the executor to sell at private sale a certain piece of real estate, and to devote the proceeds of sale to liquidating any deficiency in interterest or cash bequests under the will. The will was then executed, as before stated, and the testator signed the added clause, but the witnesses did not. In re Blair’s Will, 152 N. Y., 645.”

And in that case, Matter of Andrews, supra, it was held that a will, drawn on a printed blank, beings one piece of paper folded so as to make a sheet of four leaves, with the attestation clause printed at the top of the second page, and executed at that point, so that the first two pages make a complete will, is not subscribed at the end as required by the statute, where the third page contains further dispositions of property, even though the third page has been marked “2nd page” by the draughtsman, and the second page has been marked “3rd page.” In the opinion, Bartlett, J., says: “It was suggested on the argument of this case that the effect of the statute of wills, as strictly construed by this court, is to defeat the intention of many testators, while the fraudulent addition to wills was a crime of rare occurrence. The fallacy of this argument consists in overlooking the fact that the number of frauds prevented by our wise and simple statute can never be known. We might as well ask how many commercial crimes have been prevented by the statute of frauds. * * * 'It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better this should happen under a proper construction of the statute, than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills.” It is to be observed that in this case the question was re-examined in New York because the lower courts, while yielding to the authority of the Court of Appeals, had questioned the correctness of its conclusions, and in concluding his opinion the learned judge says: “The defeat of testamentar)'- intention in a few cases is not due to the statute, or the construction of it by the courts, but to the fact that scriveners and other laymen, ignorant of the simple and clear provisions of the statute, are permitted to draw wills. * * * We have to say in conclusion that it is quite possible, we have given to this appeal undue importance, involving, as it does, a question of law settled in this court; but we desire to express in the most emphatic manner our approval of the statute of wills as now construed.”

In Soward, etc., v. Soward, etc., 1 Duvall, 126, where it is held that a will that was written on a sheet of paper which was folded in the form of a letter and sealed with wax, and then attested by three witnesses, who wrote their names on the outside of it as witnesses at the request of the testator, was not attested as required by statute, Chief Justice Duvall says: “The statute does not more imperatively require two witnesses, than it requires them to subscribe their names to the will; and there would be as much propriety in dispensing with the one as the other, for the purpose of mitigating the hardship of particular cases, resulting' generally from the ignorance or carelessness of the testator. Thus, step by step, under the pressure of hard cases, all the forms of the law which were adopted as the surest means of protection against imposition and fraught might, and would, soon become so modified by judicial construction as to lose all their efficacy. ‘Care ought to be taken,’ says Chief Justice Tindal ‘in interpreting the statute of frauds, that its efficacy shall not be destroyed by admitting one exception after another, each being weaker than that by which it was preceded.’ ”

And in Smee v.. Bryer, 6 Moore, P. C., 404, Lord Langdale says: “It may happen, even frequently, that genuine wills, namely, wills truly expressing the intentions of the testators, are made without observations of the required forms; and wheneyer that happens, the genuine intention is frustrated by the act of the legislature, of which the general object is to give effect to the intention. The courts must consider that the legislature, having regard to all probable circuriistances, has thought it best, and has therefore determined,, to run the risk of frustrating the intentions sometimes, in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. It is supposed, and that authoritatively, that the evil of defeating the intention in some cases, by requiring forms, is less than the evil probably to arise by giving validity to wills made without any form in all cases.”

In the case before us, the will is not signed by the testatrix at the- end thereof.

The testimonium clause is as follows:

“In testimony whereof, I have set my hand to this my last will and testament, at Lakewood, Ohio, this Sixth day of June, in the year. of our Lord One Thousand Nine Hundred and Three.

The obvious purpose for which this blank line was left was for the signature of the testatrix, and it was intended as the end of' the will. The absence of her signature there not only discloses that the will is not signed by her at the end thereof, but also implies that she did not sign it at all. The attestation clause signed by the witnesses recites that the foregoing instrument was signed by the said Arminda S. Nicholson in our presence, but this does not change the fact, and in the absence of a signature is without legal effect. If a scrivener had prepared the will and had written her name where it appears in the attestation clause, her name there would have been merely descriptio personae; and when it is shown that ■the testatrix was her own scrivener, the natural presumption is that it was so intended; and even if the fact was that the testatrix wrote her name there, intending by that act to sign her will, still her signature would not be at the end of the will, and her intention could not have the effect of transposing it. The question is, not what did the. testatrix intend, but what did she do?

Counsel for defendants in error contend that the record does not present these questions, because the statutes enact that “the party sustaining the will shall offer the will and probate, and rest; the opposite party shall then offer his evidence; the party sustaining the will shall then offer his other evidence; and rebutting evidence may be offered as in other cases.” And further, that “on the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil.” And, therefore, that the court erred in directing a verdict when the defendant rested, as required by the statute. True, the statute does enact that the order of probate shall be prima facie evidence; but the legislature did not contemplate that a will not signed, or not signed at the end thereof, or not witnessed, ever would be ordered to be probated; and so the matter is not controlled by the statute. It was assumed that the end of the will was self-evident, and the statute was adopted in order to leave no room for the abuses and litigation that had been invited by the efforts of the courts to give effect to the intentions of testators. When the facts are known, the question whether the will is signed at the end is one of law; and when the will itself shows that it is not signed or attested as required by the statute, it becomes the duty of the court so to instruct the jury. The statute enacts that the order of probate shall be prima facie evidence; and so it is; but it also enacts that the defendant shall offer the will, which he did; and, it appearing from the will itself that it was not signed at the end thereof, the prima facie case made by the order of probate was overcome. But if it be said that this is technical, and that what the legislature manifestly intended was that the will and the order of probate should make a prima facie case, then we have only to say that the legislature could not have intended that it ever should be left to a jury to determine that a will not signed as required by the statute was valid because they found that the testator intended to comply with the statute. Where there is an ambiguity, like that in the will under. consideration in Irwin et al. v. Jacques et al., 71 Ohio St., 395, where there was a dispositive clause written in the margin on the last page of the will, and above the signature of the testator, and in no manner connected with the body of the instrument by any words, marks or character, as a reference to indicate where the marginal matter is to .be read in relation to the other provisions of the will, evidence is necessary in order to determine the end of the will; but where there is no ambiguity that may be explained, but only an omission that can not be cured, a defendant can not be benefited by testimony or prejudiced by its rejection.

The judgment of the circuit court is reversed and that of the court of common pleas is affirmed.

Reversed.

Shauck, C. J., Price and Davis, JJ., concur.