8 N.E.2d 247
No. 26169Supreme Court of Ohio.
Decided April 28, 1937.
Wills — Execution — Any order of performing acts satisfies statutory requirements, when — Section 10504-3, General Code — Attestation valid where testator and witnesses subscribed at different times, when — Witnesses signed will and testator subsequently signed or acknowledged in their presence — Resubscription by witnesses not necessary, when.
1. Where a statute governing the execution of wills prescribes the performance of certain physical acts as a condition precedent to valid execution of a will, without designating the order in which such acts are to be performed, any order of performance satisfies the requirements of the statute.
2. A will, which is subscribed by witnesses in the presence of testator on one occasion and, subscribed by the testator in their presence on another occasion, is deemed to have been attested by the subscribing witnesses at the time of the testator’s subscription, and is validly executed under the provisions of Section 10504-3, General Code.
3. Where witnesses subscribe a will on one occasion in the presence of the testator, and the testator subscribes or acknowledges it in their presence on a subsequent occasion, resubscription by attesting witnesses is not necessary where they identify the instrument and recognize but do not disaffirm their signatures thereon. Failure to expressly disaffirm their signatures at the time of testator’s subscription in their presence will render their prior subscription as effective as if the manual act of resubscription had been performed.
APPEAL to the Court of Appeals of Butler county.
The validity of a will is contested on the ground that it was not subscribed and attested in conformity with the requirements of Section 10504-3, General Code, in that it was signed by the testator four days after it was subscribed by his witnesses, notwithstanding the fact that he signed in their presence and they in his.
By stipulation, the parties agree to the following facts:
“It is stipulated and agreed that the decedent, George J. Bloechle, on March 26, 1935, resided on Lane
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street, in Hamilton, Ohio; that on the evening of that day, to wit, Tuesday, March 26, 1935, he went into the home of Alfred and Marie Brindle, who were husband and wife, living at 168 Beckett street, Hamilton, Ohio; that both Alfred and Marie Brindle were at home at said time, and in the presence of both of them, Mr. Bloechle produced a paper and said he wanted to know if they would do him a favor and Mrs. Brindle replied, ‘You always know we would do whatever we could, what do you want us to do? Mr. Bloechle thereupon said, ‘I want you to sign my will as witnesses’; and thereupon Mr. and Mrs. Brindle signed the paper he then had, which is the paper writing admitted to probate as the last will and testament of George J. Bloechle, deceased, and offered as an exhibit in this case, in the blank spaces provided on said paper for witnesses’ signatures. That this took place in the dining room at the Brindle home on a table therein, and immediately afterwards Mr. Bloechle left said home, carrying said paper with him, and that Mr. Bloechle did not at said time sign said paper, and Mr. and Mrs. Brindle noticed that it did not bear his signature.
“That on the following Saturday morning, March 30, 1935, Mr. Bloechle again came to the home of Alfred and Marie Brindle at 168 Beckett street, and went into the dining room of their said home and produced the paper writing admitted to probate as his will, and the same paper writing introduced in this case, and produced a pen and ink and stated to both Mr. and Mrs. Brindle, who were present in said room, that he hadn’t signed the will in their presence and he would now sign it while they watched; that Mr. and Mrs. Brindle identified and recognized the paper as the one they signed on Tuesday and saw their signatures thereon; that thereupon in their presence and immediately after said statements, Mr. Bloechle signed his name on the paper writing admitted to probate herein and offered as an exhibit in this case on a blank line at
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the place his name appears, and before the witnesses’ signatures, said signature being made by Mr. Bloechle on the same dining room table in the said home in the presence of both Mr. and Mrs. Brindle, and thereupon and immediately thereafter without anything more having taken place regarding the paper writing, Mr. Bloechle left the Brindle home with the paper writing.”
The will was admitted to probate and thereafter, to test its validity, suit was instituted in the Court of Common Pleas. At the close of all the evidence contestants and contestees moved for an instructed verdict and the court granted the motion of contestants and directed a verdict finding the will invalid and rendered judgment accordingly. On appeal, the Court of Appeals affirmed the judgment of the trial court on the ground that the will was not executed in conformity with Section 10504-3, General Code, holding that signing by testator must precede the subscription and attestation by the witnesses.
The case is now in this court on the allowance of a motion to certify.
Messrs. Williams, Sohngen, Fitton Pierce, for appellees.
Mr. John P. Rogers, Mr. John D. Andrews and Mr. Theodore I. Weiss, for appellant.
DAY, J.
The question presented for our determination is whether, under the provisions of Section 10504-3, General Code, a will is validly executed which is signed by two witnesses in the presence of the testator on one occasion and four days later is signed at the end thereof by the testator in the presence of the same two witnesses who identified the instrument and recognized their signatures thereon.
Appellees contend that under Section 10504-3, General Code, a will which is subscribed and attested by witnesses prior to its signing by testator is invalidly
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executed; that the instrument which the statute requires witnesses to attest and subscribe is a will; that a paper writing is not a will until it is signed by the testator; that where witnesses subscribe and attest an instrument purporting to be a will prior to the time it is signed by testator, they attest to nothing, and that consequently the will is void.
Section 10504-3, General Code, governing the execution of wills, provides:
“Except nuncupative wills, every last will and testament shall be in writing, but may be handwritten or typewritten. Such will shall 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 his signature.”
To be valid as a will, it is mandatory that the instrument be executed in accordance with the formalities prescribed by statute; otherwise, the property attempted to be disposed of thereby will pass as intestate property.
Has the will in the instant case been thus executed? The agreed statement of facts discloses that at testator’s request, and in his presence, Alfred and Marie Brindle signed the will as witnesses on March 26, 1935; that on March 30, 1935, the testator returned to the home of these witnesses and told them that he had not signed the will in their presence and that he would sign it while they watched. Mr. and Mrs. Brindle identified and recognized the paper as the one they had signed four days prior thereto and saw their signatures thereon. Thereupon, the testator signed it in their presence.
Is there anything in the wording of the statute which invalidates a will thus executed? The statute provides that the will must be attested and subscribed in the presence of the testator by two or more competent persons
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who saw him subscribe or who heard him acknowledge his signature. We fail to find either an express or an implied prescription in the statute for any particular order to be followed in the performance of these acts as between the testator and his attesting witnesses. None having been prescribed by the Legislature, none will be imposed by the courts. Courts will construe but not reconstruct a statute. In the absence of an unequivocal statutory requirement for a particular order to be followed in the execution of a will, none will be presumed to have been intended by the Legislature. In construing a statute a court will seek to ascertain what the Legislature intended by what it enacted and not what it intended to enact. 37 Ohio Jurisprudence, 525, Section 281. Statutory omissions of provisions, if they occur, will be presumed to have been intentional rather than accidental; but whether intentional or accidental, courts are without power to supply what the Legislature omitted. 37 Ohio Jurisprudence, 500, Section 271. Courts declare what the law is and not what the law ought to be.
Section 10504-3, General Code, regulates the execution of wills and requires the performance of certain formal acts, but does not prescribe the order of their performance.
The terms “subscribe” and “attest” employed in the statute have separate and distinct meanings and imply two separate acts in the process of execution. Both are indispensable to the validity of a will, but they need not be simultaneous in performance. Subscription is manual, while attestation is mental. Swift v. Wiley, 40 Ky. 114, 117; 1 Schouler on Wills (6 Ed.), 587, Section 515. Subscription identifies the instrument, while attestation is the mental process by which the subscribing witnesses hear the testator acknowledge his signature or see him sign the instrument in their presence. The signatures of the witnesses, if affixed to the instrument before it is signed by the testator,
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do not attest to the testator’s signing or acknowledgment until such time as the witnesses perform the mental process of seeing the testator subscribe his name in their presence, or hear him acknowledge his signature. Attestation, in the nature of things, is simultaneous with the testator’s subscription or acknowledgment of his signature in their presence.
In the instant case, the subscription by the witnesses prior to the signing by the testator in their presence lacked attestation. However, as soon as the testator subscribed the will in their presence, notwithstanding the lapse of four, days, attestation thereupon attached to the witnesses’ subscription and the requirements of the statute were thereby complied with, rendering the will validly executed.
Where a statute governing the execution of wills prescribes the performance of certain physical acts as a condition precedent to valid execution of a will, without designating the order in which such acts are to be performed, any order of performance satisfies the requirements of the statute. There are decisions of other jurisdictions to the contrary, some holding that signing by the testator must precede subscription by the witnesses and others holding that subscription by witnesses may precede the signing by testator providing the prior subscription by the witnesses and subsequent signing by the testator are parts of one continuous transaction. However, these cases are distinguishable on the facts and, in some instances, on the wording of the controlling statute.
We hold that a will, which is subscribed by witnesses in the presence of testator on one occasion and subscribed by the testator in their presence on another occasion, is deemed to have been attested by the subscribing witnesses at the time of the testator’s subscription and is validly executed under the provisions of Section 10504-3, General Code.
Appellees contend that when testator signed the will
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four days after the witnesses’ subscription it was not resubscribed by any of the witnesses and therefore fatally defective in execution. We are not in accord with this contention. The fact that the witnesses did not resubscribe their names to the will at the time of the testator’s subscription does not affect its validity. Where witnesses subscribe a will on one occasion in the presence of the testator and the testator subscribes or acknowledges it in their presence on a subsequent occasion, resubscription by attesting witnesses is not necessary where they identify the instrument and recognize but do not disaffirm their signatures thereon. Failure to expressly disaffirm their signatures at the time of testator’s subscription in their presence will render their prior subscription as effective as if the manual act of resubscription had been performed.
We hold, therefore, that the will was validly executed under the provisions of Section 10504-3, General Code.
Judgment reversed and judgment for appellant.
WEYGANDT, C.J., JONES, MATTHIAS, ZIMMERMAN and WILLIAMS, JJ., concur.
MYERS, J., dissents.