AS TO WHETHER. A WILL WAS SIGNED AT THE END.

Court of Appeals for Madison County.

#### Alice C. Chandler et al v. Minnie Dockman et al.

Decided, December 5, 1917.

*Wills*— Pages *so Put Together as to Place the Sheet Containing the Testimonium, Clause on Top*— Orderly *Construction Shown hy Shifting the Sheets and Instrument Held Valid.*

Where a will, written on two sheets of paper, is so pinned together as to put the sheet containing the testimonium clause on top and the sheet manifestly intended as the first page on the bottom, but by reading the last page first and the first page last continuity and *298•an orderly construction of the instrument is shown, it should be treated as signed at the end as required by law, and not as invalid because of the evident mistake in fastening the sheets together.

*Murray & Emery,*for plaintiffs in error.

*C. R. Hornbeck*and *Huggins, Pretzman & Davies,*contra.

Kunkle, J.

This is a proceeding to contest the will of Harriett Stouffer, deceased. The will consists of two typewritten sheets of paper, which were fastened together by brads or paper fasteners.

This instrument was presented to the Probate Court of Madison County, and an application was made to probate the same as the valid last will and testament of Harriett Stouffer. The probate court refused to probate the same. An appeal from the judgment of the probate court was taken to the court of common pleas and that court admitted the will to probate as being the valid last will and testament of the said Harriett Stouffer.

Plaintiffs in error then filed a petition in the Common Pleas Court of Madison County to contest the said will. The case was submitted to the court upon the pleadings and an agreed statement of facts. Upon the undisputed facts, the trial court instructed the jury to return a verdict finding that the said instrument was the valid last will and testament of said deceased. From such judgment, error is prosecuted to this court.

In brief, it is contended that the instrument in question is not the valid last will and testament of said deceased because the same is not signed at the end thereof, as required by Section 10505, General Code.

This contention is based upon the fact that the signature of the testator and of the attesting witnesses is upon the first or upper page as the sheets are fastened together.

The following is a copy of said will as it appears in the record, marked Exhibit No. 1, namely:

> (Top Page.)

> “Fift, I hereby appoint my husband, Abram J. Stauffer and J. R. Woods of Plain City, Madison County, Ohio, as Sole Executors of this, my last Will and testament.

> *299“In Witness whereof, I hereunto set my hand at Plain City, County of Madison, this 12th day of June 1914.

> “Harriett Stouffer.

> “Signed and Sealed by said Harriett Stauffer, who at the same time published and declared the same, as and for her last will and Testament, in the presence of us, who, in her presence, and in the presence of each other, and at her request, have hereto Subscribed our names as witnesses.

> “John H. Shultz.

> “Jos. Nunamaker.”

> (Bottom Page.)

> “The last will and testament of Harriet Stouffer?

> “In the Name of the benevelant Father of all.

> “I, Harriet Stouffer of the village of Plain City, County of Madison, in the State of Ohio, being in good health of body, and of sound ,and Disposing mind and memory, and 'being desirous of settling my wordly Affairs while i have strenght and capacity so to do, do make, publish, and declare this my last will and testament.

> “First. I give and bequeth to my beloved husband, Abram J. Stouffer, all my real Estate and personal Property that i may possess at my dead in fee Simple, and at his head if there is any left to be distrubed as follows to-wit, tó my sister Marry Bowers, the sum of One Dollar, to my Neisses Effie Converee, Alliee Chandler, Roby Beach and Charles Guy the Sum of one dollar each.

> “To Minnie Dockman and Ettie Dockman two hundred Dollars each.

> “To the Presbyterean Church of Plain City, Two Hundred Dollars.

> ‘ ‘ Second. It is my wish that wen the above bequeths are paid that my Executors herein after named shall see that John Guy my Brother if in need shall hold in trust for him whatever they may deem sufficient for his wants before any distribution is made of' the remainder of my estate that may bé left at the death of my Husband Abram J Stauffer,

> “Third. Whatever property both personal or real that may be left after Clouse first and Second in this will has been complied with shall be devided as follows, to-wit, to Ellen Shank the one Eight of the estate Left, to Marry Ann McKinneys Children, one Eight, Thurman Guy one third and to Rhoda Fraham and her Heirs Two Thirds?

> “Fourth. If any of the witnin named Parties herein should become dissatisfied with the distribution made by me or .attempt *300by law or otherwise to set this will aside, they shall forfeit all rights to share there under and their interest whatever it mays' be shall revert to the other Iieirs herein mentioned. ’ ’

It clearly appears from an inspection of the original will that the lower or second sheet as fastened together was intended to be the first part of the will and that the first or upper sheet as fastened together was intended to be the concluding portion of the will.

The lower or second sheet of the will begins as follows:

> “The last will and testament of Harriet Stouffer?

> “In the Name of the benevelant Father of all.

> “I, Harriet Stouffer of the village of Plain City,” etc.

This instrument then proceeds with regular continuity down to the bottom of said page and ends with paragraph No. 4, and commences at the top of the first or upper page with paragraph No. 5 and proceeds with regular continuity down to the testimonium clause thereof, which was clearly intended to be the end of the will.

The signature of the testator immediately follows such testimonium clause.

The attestation clause appears to the left of the testator’s signature upon said sheet and is immediately followed by the signatures of the subscribing witnesses.

A careful examination of the will convinces us that the end of the will, within the meaning of Section 10505 of the General Code, is the blank line evidently intended for signature immediately following the testimonium clause. This is the place dt which the will in question is signed.

We think this holding is not inconsistent, but in harmony with the rule announced by our Supreme Court in 71 O. S., 395; 77 O. S., 104, and 80 O. S., 691.

In the ease of *Irwin*v. *Jacques,*71 O. S., p. 395, Judge Price, in announcing the decision, says:

> “There should be some continuity in the expression of the testator’s wishes, and if a part of the will is aside from the con*301tinuity of the language, such as the marginal matter in this ease, there should be some word or character used as reference to the place it should occupy in relation to the other provisions, so that the end of the will may be ascertained.”

Under the rule of continuity of expression so announced, we think the beginning ,and end of this will can be definitely fixed by an examination of the context.

In the Sears case, 77 O. S., 104, the court in substance held: That the end of the will was the blank line for signature immediately following the testimonium clause, and the will in that case was held invalid because the testator did not sign at such place, but wrote her name as a part of the testative clause immediately following.

In the Mader case, 80 O. S., 699, the will was held valid, where the testator signed upon the blank line immediately following the testimonium clause, notwithstanding the fact that there was a considerable blank space between the testimonium clause and the dispositive part of the will.

In this case, Judge Crew, among other things, employs the following language:

> “While the leaving of a blank spaee'sueh as found in this will was imprudent in that it afforded an opportunity for fraudulent practice, nevertheless, the leaving of such blank is not of itself sufficient to invalidate the will. By usage and custom, in every orderly constructed will, the testimonium clause is universally recognized and adopted as the formal conclusion ,and end of such will, unless from the instrument itself a contrary intent appears.” * * ***

In the case of Stinson’s estate, 228 Pennsylvania, p. 475, the court, commencing at the bottom of page 477, states :

> “His written declaration is his *animus testandi;*when it is fully expressed his will is finished .and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will and that must manifestly be regarded as the end of it from an inspection and reading of the writing is the end of it under the statute, which contains nothing about the spacial or physical end of it.”

*302From a careful consideration of the authorities pertinent to this issue and of the instrument in question, we have reached the conclusion that the instrument under consideration was signed by the testatrix at the end thereof, and that the trial court upon the undisputed facts correctly instructed the jury to return a verdict in favor of the validity of the will.

Finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

Allread, J., and Ferneding, J., concur.