may make a valid will. Married women are not excluded. Corporations are excluded, because in judgment of law they never die. (a)

Who may take by Will. In this State, all natural persons, without exception, are capable of taking by will, provided they be in being at the time of making the will, or be the immediate issue of persons then in being. We never have had anything in the nature of the statutes of mortmain to limit the capacity of corporations; and whether they can take by will or not, will depend upon the express provisions of their charters. As to aliens, we have seen that in this respect they enjoy all the privileges of citizens. There is however, a contingent exception to the above universality, in the case of a subscribing witness to a will, whom the rules of evidence require to be disinterested; and accordingly the statute provides, that if a legacy be left to him, and the will cannot be proved without him, such bequest is void, unless he would be entitled to a portion as heir, in case there had been no will; in which case so much of that portion shall be saved to him as is equal to the legacy.

What may pass by Will. In this State, every description of property, real and personal, whether held by legal or equitable title, will pass by will. This is settled not only by the various words employed in the statute, but also by the decisions of our court. But it is expressly provided that no will shall affect the claims of creditors; thus legalizing the principle of justice, that all a man can dispose of, in anticipation of death, is the surplus which remains after all his debts are paid. And it is further provided, that the widow's dower cannot be affected by will, unless a legacy be given her in lieu of dower; and even then she has an option, which she may exercise at any time within six months; but she cannot take both. This option must be made known to the court of common pleas, and entered on the minutes thereof. If the widow neglect so to make it known, she is held to have waived her legacy, and will have her dower, together with such portion of the personalty as she would have had if no will had been made. It is also provided, that any devise of property shall be held to convey all the testator's interest therein, unless it shall clearly appear by the will that the testator intended to convey a less estate. (b) And if the testator has acquired property after making his will, Bush (Ky), 106. Gross inequality in the disposition of property is not ground for setting aside will, though it may be considered as bearing on the question of capacity, fraud, or undue influence. Kevil v. Kevil, 2 Bush (Ky.), 614. That the principal devisee was one with whom the deceased had illicit intercourse, does not raise a presumption of undue influence. Monroe v. Barclay, 17 Ohio St. 802; Roe v. Taylor, 45 III. 485.

(a) Two persons cannot make a joint will. Walker v. Walker, 17 Ohio State, 157. But see Ex parte Day, 1 Bradf. 476; Lewis v. Schofield, 26 Conn. 452.

(b) A will disposing of lands in Ohio must be construed according to Ohio rules; and in such case a widow will not be entitled to dower, in addition to the provision made for her, unless such clearly appears to have been the testator's intention. Jennings v. Jennings, 21 Ohio State, 56. It is governed by the law in force at the testator's death. Hartshorn v. Ross, 2 Disney, 15, 444.

such property will pass by the will, if it appear that he intended to dispose of all the property he might have at the time of his death. But where property descends, in consequence of not being disposed of by the will, it is, by our statute, the first to be chargeable with the testator's debts, unless the contrary be directed; and where property specifically devised has been taken to pay the testator's debts, the other devisees are to contribute pro rata to make up the loss, unless the contrary be directed. If either of the devisees be insolvent, his share is to be made up by the rest; and if he be dead, his estate must contribute. All questions of contribution arising under wills may be adjusted in chancery. We have before seen that land taken by devise from an ancestor is here made ancestral property, in the same manner as if taken by descent.

§ 165. Execution of a will. (a) The form of a will is of no manner of consequence, provided the intention of the testator is manifest. Not a technical word is absolutely necessary. It is common enough to preface a will with an appeal to the Almighty, an allusion to the uncertainty of life, and an averment of the testator's soundness of mind, but all this is unnecessary. In general, the more direct and concise a will is, the better. But there are certain formalities required by the statute which cannot be dispensed with.

1. A will must be in writing. (b) This is required, not only by the statute of frauds, which requires all conveyances of realty to be in writing, but also by the statute of wills, which expressly requires all wills to be in writing except nuncupative wills. These last cannot pass realty; (c) but they are good for personalty, if they were made in the last sickness, reduced to writing within ten days after the uttering of the testamentary words, and subscribed by two witnesses, who can testify that the testator was of sound mind and not under restraint, and that he called upon some person present to witness that such was his will; and they must be proved within six months.

2. A will must be signed at the end thereof by the testator, (d)

(a) To pass real estate, a will must be executed with the formalities required by the law of the country where the real estate is situated. To pass personalty, it must have the formalities required by the law of the place of his domicile, or of the place where he actually is at the time of his death. If a person temporarily absent from his domicile makes a will according to the law of the place where he then is, but which does not comply with the law of the place of his domicile, and afterwards returns to his domicile and dies there, the will is not valid even as to personalty. Manuel v. Manuel, 13 Ohio State, 458.

(b) A mistake in a will cannot, therefore, be shown by parol and corrected, as in such a case a will would be made by parol, or if the mistake were shown by writing, still it would be without the formalities required by the statute. Bacon v. Wetmore, 2 Green, 250; Wallige v. Wallige, 55 Penn. State, 209; McAlister v. Butterfield, 31 Ind. 25; Skipwith v. Cabell, 19 Grattan, 758.

(c) But under the statute of 1824, a nuncupative will was sufficient to pass realty. Gillis v. Weller, 10 Ohio, 462; Ashworth v. Carleton, 12 Ohio State, 381.

(d) Where the testator wrote his name at the end of a will, without any witnesses, then asked for the will to "finish it," and wrote a bequest below his name, and the witnesses then signed, but the testator did not sign again, held invalid. Glancy v. Glancy, 17 Ohio State, 134. The validity of the execution of a will must be determined by the law in force at the death of the testator. Jones v. Robinson, 17 Ohio State, 171.

or by some other person in his presence, and by his express direction; but since 1825, a will need not be under seal.

3. It must be attested and subscribed, in the presence of the testator, by two or more competent witnesses, who either saw the testator sign the will, or heard him acknowledge the signing. Prior to 1795, three subscribing witnesses were required. The witnesses need not subscribe in the presence of each other, nor know the contents, nor attest every page. As to being in the presence of the testator, it has been held sufficient to be in the same room, so that the testator might see them, though in fact he did not. (a)

§ 166. Revocation of a Will. (b) The statute points out several ways of revoking a will, or a particular part of it, by the testator. 1. By intentionally destroying, tearing, cancelling or obliterating such will, or causing the same to be done in his presence, or by his direction. (e)

2. By making and publishing a subsequent will; for when there are two wills, it is only the last which takes effect. But the revocation of a subsequent will does not revive a prior one, without express words to that effect, or a republication of such prior will. Nor will a nuncupative will revoke a prior written one.

3. By making a codicil for the express purpose of revocation; for a codicil being in general only a sequel to a will, of which it

(a) 4 Kent, Com. 515. The witnesses need not attest the instrument at the same time, or in the presence of each other. The acknowledgment of the signature by the testator, when the witness did not see him sign, may be by signs and motions, or conduct, as well as by express words. Raudebaugh v. Shelley, 6 Ohio State, 307; Logue v. Stanton, Sneed, 97: Haysradt v. Kingman, 22 N. Y. 372; Matter of McElwain, 3 Green, 490; Reed v. Watson, 27 Ind. 443; Willis v. Mott, 36 N. Y. 486. But the signature of the testator must be affixed before that of the witnesses. Jackson v. Jackson, 39 N. Y. 153. But, although a testator may adopt a signature previously made by acknowledgment before the witnesses, it is held in England that a witness cannot do this. Cooper v. Bockett, 7 Eng. Ec. Rep. 537. This appears to be an unreasonable distinction, and has been repudiated in Pennsylvania, in Sturdevant v. Birchett, 10 Grattan, 67; Kentucky, in Smith v. Wylie, 1 B. Monroe, 114; and some other States; and is disapproved of in Redfield on Wills, pp. 230, 247. But it has lately been so held in Massachusetts. Chase v. Kittredge, 11 Allen, 49. In Illinois it is not necessary that the witness should know that it is a will; he is only a witness to the signature; no publication is required. Dickie v. Carter, 42 Ill. 376. (b) A conveyance subsequent to the date of a will does not revoke the will, except so far as relates to the property conveyed. Brush v. Brush, 11 Ohio, 287. A duly executed written will can neither be wholly nor partially revoked by a subsequent nuncupative will. M'Cune v. House, 8 Ohio, 144. Where a will was made, containing a residuary devise of all his freehold estate, and afterwards other land was acquired in fee, and the testator declared, in the presence of two witnesses, that he now republished his former will, but without signing any new instrument, it was held that all his realty passed. Reynolds v. Shirley, 7 Ohio, pt. 2, 39. Pruden v. Pruden, 14 Ohio State, 251.

(c) Where a testator, being blind, told J. to bring him his will, and he handed it to him in an envelope with three seals, and the testator felt the seals and handed it back, directing it to be thrown into the fire and burned, but J. put it into his pocket, and threw something else into the fire, and called to the deceased to listen and hear it burn, and the deceased smelt the burning paper, and died in the belief that the will was destroyed, it was held not to be a revocation, and the court refused to declare the devisee a trustee for the heirs. Kent v. Mahaffey, 10 Ohio State, 204. Contra, Smiley v. Gambill, 2 Head, 164; Blanchard v. Blanchard, 32 Vt. 62. As to what is sufficient evidence of a revocation, see Price v. Powell, 3 Hurl. & Nor. 341; Smock v. Smock, 3 Stockton, 156; Andrew v. Motley, 12 C. B. (N. s.) 514; Brown v. Brown, 8 Ellis & B. 876.

forms a part, does not ipso facto work a revocation, like a subsequent will; but only when it expressly provides for such revocation, or contains provisions repugnant to those of the will; and the codicil must be executed with the same formalities as the will itself. (a)

4. By having a child subsequently born, there being none alive before, and no provision for such child in the will or otherwise. (b) For if the testator had a child when the will was made, the subsequent birth of another does not revoke the will; but provision is made that the after-born child shall take, as heir, the same portion of the estate as if there had been no will; to which portion, all the legatees contribute proportionably; and the case is the same where a child was supposed to be dead at the time of making the will, and the contrary turns out to be the fact; but in either case, a deduction is made from the amount to be contributed, of so much as such child may have received by way of advancement. But a testator may expressly provide so that the subsequent birth or discovery of a child shall not alter the dispositions made by the will. It is only in the absence of such express provision, that the law steps in to supply the omission. A subsequent marriage, without the birth of a child, does not in any case revoke the prior will, either of the husband or wife. (c)

5. As to the effect of a subsequent conveyance, we adopt the common law, which holds the will to be revoked as to the particular portion of the estate conveyed. This is reasonable, because the conveyance, though made after the will, takes effect first. But our statute provides that no subsequent contract, incumbrance, or other act, which does not wholly divest property from the testator, shall revoke the prior will in reference to such property, unless such contract, incumbrance, or other act, be wholly inconsistent with the previous devise or bequest. With this exception, the property passes by the will, subject to all the rights created by the subsequent acts of the testator.

§ 167. Probate. (d) A will is of no effect until probate has been

(a) Where the disposition made by the codicil is inconsistent with that made by the will, it will operate as a pro tanto revocation. Larabee v. Larabee, 28 Vt. 274. But it will not revoke the will further than is required by express terms, or necessary implication. Collier v. Collier, 3 Ohio State, 369.

(b) This is the rule in the absence of any statutory provision on the subject. McCullum v. McKenzie, 26 Iowa, 510. When deceased had no child at the time the will was made, the subsequent birth of a child revokes the will, and it is not revived by the fact that the parent survives the child. Ash v. Ash, 9 Ohio State, 383. Where a will was made June 12, 1830, and the testator died July 7, 1830, and a child was born on the 4th of December following, held that the testator had no child in esse at the time of the execution of the will, within the meaning of the statute of wills, and that the will was therefore avoided by the birth of such child. Evans v. Anderson, 15 Ohio State, 324.

(c) In New York, by statute the subsequent marriage of a woman does revoke prior wills, and the married women's acts have not altered this rule. Loomis v. Loomis, 51 Barb. 119.

(d) By the act of 1852, when a will is propounded for probate, the court only examine witnesses in favor of the probate. In other words, the contest cannot be made until after the probate. This was decided in the case of Hathaway's will, 4 Ohio

made. For this purpose, the executor, or any person interested, may bring the will before the probate court. The probate must be made in the county where the property lies; or if it lie in several, then in either. (a) The subscribing witnesses, and such others as any person interested may desire, if within the jurisdiction, must be examined in open court; if absent, their depositions must be produced, if possible; but if dead or gone to parts unknown, any other legal testimony may be taken. The testimony so taken is reduced to writing by the clerk and filed; and if it appear to the court that the testator was competent at the time to make a will, and not under restraint, and that the will was duly executed and attested, such will and proof are recorded in the clerk's office; and a certified copy thereof is as valid and effectual as the original. This probate, however, is not absolutely conclusive as to the validity of the will; which is liable to be contested by bill in chancery, at any time within two years from the probate; or in case of disability, two years from the removal thereof. (b) And here I would remark, that besides the four disabilities usually provided for in our statutes, namely, infancy, coverture, insanity, and imprisonment, we have in this one case a fifth, namely, absence from the State, which corresponds to being "beyond seas," in the English law. When a will is. contested in chancery, our statute requires an issue to be made up, whether the writing produced be the last will of the testator or not, which issue is tried by a jury, the defendant having the affirmative. If any devisee in a will know of its existence, and do not, within three years, produce it for probate, he thereby forfeits his devise. And any person having control of a will, and failing to produce it for probate after being duly cited, may be attached for a contempt, and is liable in damages to the party injured. Provision is made for depositing a will for safe-keeping with the clerk of the court of common pleas; in which case the will must be sealed up in a wrapper, and the name of the testator indorsed on the outside; and if, after the death of the testator, there be no person indorsed on the wrapper, as authorized to produce the will for probate, it will be publicly opened in court, and the proper proceedings had. When a will has been admitted to probate, and is not contested, as above provided, it binds everybody interested. If lands affected by a will lie in several counties, one probate is sufficient; for an authentiState, 383. By the same act, in case probate be refused, an appeal lies to the common pleas, but not from the granting of probate. And see Chapman's will, 6 Ohio, 148; Hunter's will, 6 id. 499; Swazey r. Blackman, 8 id. 5. As to the practice in contesting will, see Green v. Green, 5 Ohio, 278; Raudebaugh v. Shelley, 6 Ohio State, 307. The verdict of a jury, as to the validity of a will, may be reviewed on petition in error. Glancy v. Glancy, 17 Ohio State, 134. Spoliated or destroyed wills cannot be established under the statutes of Ohio, unless existing subsequently to the testator's decease. In matter of Sinclair's will, 5 Ohio State, 290.

(a) If the testator were a resident of this State at the time of his death, letters testamentary can only issue from the probate court of the county in which the testator resided. Limes v. Irwin, 16 Ohio State, 488.

(b) Where a proceeding is commenced within the two years as to some of the parties, the right of action is saved as to all, who are ultimately made parties to the proceeding. Bradford v. Andrews, 20 Ohio State, 208.