#### Underwood et al. *v.*Rutan et al.

*Wills*— 'Validity — *Devise contingent upon recovery*— *Execution*— *Attestation or acknowledgment sufficient, when*— Witnesses *to signature by mark.*

1. A testamentary clause in a will disposing of the testatrix’s property after death, in case she does not recover, is a contingent will, and valid if recovery does not occur.

2. Where two subscribing witnesses have seen a testatrix subscribe her name to a will by directing another to sign her name thereto in her presence, the testatrix attaching her mark thereto, and the signature so made is then attested and subscribed by said witnesses in the testatrix’s presence, the will is properly executed. In such case it is not necessary that the testatrix declare that the instrument is her will or that she has signed it. *(Keyl et al.*v. *Feuchter et al.,*56 Ohio St., 424, distinguished.)

(No. 16340

Decided June 8, 1920.)

Error to the Court of Appeals of Logan county.

The following instrument was admitted to probate by the probate court of Logan county, Ohio, as the last will and testament of Rebecca R. Williams, deceased:

“I [In] case I do not recover I want my undivided half of all the Peoples Bank Block & other Buildings extending across the Alley — & my Bank Stock to be put in Trust The-dividends & rents to go toward the endowment fund of the Mary Rutan Hospital — I also want my Library to go to- the Y. M. C. A.- — In memory of Earnest P. Williams

“Rebecca R. Williams (X)

“Miss Pearl Corbett

“Elizabeth D. Lee."

*307Suit was brought by plaintiffs in error to contest the paper writing, asking that an issue be made to determine whether it was the last will and testament of the deceased. Upon the issue joined the jury returned a verdict sustaining the will. The judgment of the trial court sustaining the will was, on error, affirmed by the court of appeals; whereupon error was prosecuted to this court.

This paper writing was executed on October 16, 1916, during the last sickness of the testatrix. She did not recover from illness which had overtaken her at the date of the alleged execution of the instrument. There was no attestation clause embodied in the paper, writing. While the instrument itself was not dated, it was placed, at the time, in an envelope, which was marked “Statement of Rebecca Williams. Oct. 16th, 1916.” Among others who testified in the contest proceedings were Pearl Corbett and Elizabeth D. Lee, the two subscribing witnesses to the paper writing. The former had been acting as a day nurse for a period of about eight months, and the latter was an old friend visiting the deceased. Both of these witnesses testified that at the time of the execution of the paper writing the deceased was ill in bed; that Mrs. Lee signed the name of Rebecca R. Williams to the instrument and made the parenthesis in which the cross-mark was placed; that testatrix with the support of these two witnesses placed the cross-mark in the parenthesis. While the evidence does not distinctly disclose a direct request that the two witnesses subscribe as such, there is sufficient testimony to indicate that the decedent desired both to *308witness the signature to the instrument. The testimony further discloses that Mrs. Lee suggested to the decedent that she make a will or some testamentary disposition of her property to take effect in case of death; that the testatrix dictated to Mrs. Lee what disposition she desired to make of her property and the latter wrote the instrument as quoted above. In this connection the record gives the testimony of Elizabeth D. Lee, relating to a conversation with testatrix, as follows:

“ ‘Well, have you any other bequest you want to make?’ ‘Not now.’ Then I said, ‘Well, now this is all right.’ ‘Well,’ she says, ‘now this has to be signed and you know I can’t write.’ ‘Well,’ I said, ‘I can write your name, and would you be willing to make your mark?’ ‘Yes’, she says, T will make my mark, but you will have to get Gretchen,’ that’s the nurse, she called her Gretchen, — ‘have ■ the nurse come in and raise me up.’ So I called the nurse; she raised her up in bed, and I held her, stood at her back and the nurse gave her the pen and ink, and then she slipped her hand under her elbow, like this, (illustrating) to just kind of support it, just as though she would lay it down this way; and with her own hand she made that cross in the parenthesis that I had made for it, just as plainly as anybody; and then she laid down. ‘Now,’ I said, ‘Rebecca’— ‘Now,’ she says, ‘but you must sign this; it requires two signatures.’ ‘Well’ I said, ‘I will sign it, but I will let the nurse sign first.’ So Miss Corbett signed; then I signed; and ‘Now’ I said, ‘Rebecca, I am going to fold this up *309and put it in an envelope, and what shall I do with it? I don’t want the responsibility of it.’ ‘Well’ she said, ‘You call Mary Reese and have her unlock the middle drawer and put it right in the drawer there.’ So I put it in the envelope and sealed it; then I wrote on it, in a hurried way, ‘Statement of Rebecca R. Williams, October 16, 1916.’ It’s written on the envelope, and I read it to her, ‘Now, I have written this is a statement,’’ and she looked at me; she didn’t say; that was my doings; she didn’t tell me what to write on the envelope. And so the housekeeper unlocked the drawer and we put it in there. ‘Now,’ I said, ‘You understand, if, when you get well, if you want to make a more extensive will, you can either embody this in it or you can destroy this and make another.’ ‘Well,’ she says, ‘don’t you think I have made a mighty good start?’ ‘Yes, I think you have.’ And so then I left the room.”

The witness Pearl Corbett also testified that she saw the words “Rebecca R. Williams” written by Mrs. Lee and that she also saw the cross-mark attached thereto by the deceased; she also testified that Mrs. Williams requested Mrs. Lee to write her name to. the will and that she herself would make a cross-mark, and that deceased said at the time that Mrs. Lee and herself should both sign.

*Messrs. Owen, Ware & Owen*and *Messrs. Johnson & Miller,*for plaintiffs in error.

*Mr. John E. West*and *Messrs. Miller & Middleton,*for defendant in error.

*310Jones, J.

While the usual testamentary words are not utilized in this instrument, the language used, supplemented by the testimony of the witnesses, is sufficient to disclose that the instrument in question was intended to be a will and a testamentary disposition of the property in case of death. 40 Cyc., 995, and *Bailey*v. *Bailey et al.,*8 Ohio, 239.

If otherwise valid, the fact that a testator has made a testamentary disposition dependent upon the contingency of failure to recover from illness does not invalidate the instrument in the event such recovery does not occur. In this case the disposition of the property was to- be made at her death, and upon the contingency that she did not recover. The authorities uniformly hol'd that contingent wills of this character are always upheld in the event of non-recovery, as they display the evident intention of the testator. *Morrow's Appeal,*116 Pa. St., 440; *Robnett et al.*v. *Ashlock,*49 Mo., 171; *In re Todd’s Will,*2 Watts & S. (Pa.), 145; *Dougherty &c.*v. *Dougherty &c.,*61 Ky. (4 Met.), 25, and *Magee et al.*v. *McNeil et al.,*41 Miss., 17.

The complaint is now made, however, that the trial court erred in charging the jury that it was not' necessary for the subscribing witnesses to hear the testatrix declare that it was her will, or that she had signed her name thereto, if the witnesses actually saw the testatrix sign her name to the writing. The charge upon that subject given by the trial court is as follows:

“The testator may sign his own name or another may sign it for him in his presence and at his ex*311press direction. A testator may sign by mark and direct the signing of his name by another. When witnesses, two or more, who are competent, see the testator sign his name to the writing, *it is not necessary that they hear him declare that it is ■his will or that he has signed his name thereto.”*

It is now claimed that this charge is in direct conflict with the law of this court as stated in the syllabus of *Keyl et al.*v. *Feuchter,*56 Ohio St., 424. In respect to the execution of wills, Section 10505, General Code, is as follows:

“Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and 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 it.”

The case of *Keyl et al.*v. *Feuchter, supra,*was reported in a *per curiam*to which the following syllabus was áttached: “One essential to the admission of a paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, in the presence of the two subscribing witnesses.”

Undoubtedly if the broad and natural significance be given to the quoted syllabus it is there held that in Ohio a will to be valid must be acknowledged by the maker as his will in the presence of two subscribing witnesses, even if they were present and saw him subscribe it. Under the practice of this court syllabi are infrequently attached to these *per curiams,*and in the case of *Keyl et al.*v. *Feuchter,**312*supra,*the quoted syllabus undoubtedly has gone beyond the scope which the facts in the case and the *per curiam*warrant. While the language of the syllabus states that one essential to the admission of a will is that it should be acknowledged by the maker as his will, an examination of the case discloses that the real issue involved was whether the signature of a testator, made in the absence of a subscribing witness, was acknowledged in the presence of the latter. And at the close of the *per curiam*that feature of the case was the only one disposed of by the court, for the court there finds that there was no acknowledgment by the maker “either of the paper as his will, or of his signature thereto, in the presence of that subscribing witness.”

The language of the Ohio statute relating to the execution of wills is somewhat different from that found in other states of the Union. Our statute requires the attestation and subscription of two witnesses, who (a) saw the testator subscribe, or (b) heard him acknowledge it. The last phrase is peculiar to the Ohio code and is not generally found elsewhere.

In this case the subscribing witnesses actually saw and helped the testatrix attach her signature to the instrument in question. The statute was therefore complied with by the attestation and subscription of two witnesses “who saw the testator subscribe.” This feature of the case distinguishes the following Ohio cases where the will was executed by the testator in the absence of the subscribing witnesses and where it was held that an acknowledgment was *313necessary: *Raudebaugh*v. *Shelley,*6 Ohio St., 307; *Haynes*v. *Haynes,*33 Ohio St., 598, and *Keyl et al.*v. *Feuchter, supra.*

The charge of the court, in respect to the execution of this will is, therefore, not erroneous. The charge of the court is challenged in other respects, but, upon examination of the whole charge, we find no prejudicial error therein.

The judgment of the court of appeals is affirmed.

*Judgment affirmed.*

Matthias, Johnson and Merrell, JJ., concur.

Nichols, C. J., not participating.