There was no error in the court charging the jury that a verdict should be returned by the concurrence of three-fourths or more of the jury.

The plaintiffs further claim that the trial court erred in giving defendants' request to charge before argument. The request charged is as follows:

"If you find that the paper writing purporting to be the last will and testament of Elizabeth Slemmons was signed by her in the presence of the two witnesses, S. M. Farnesworth and Catharine A. Case, and that said witnesses signed the same in the presence of the testatrix, then I charge you that as to whether the testatrix signed her name before or after the witnesses had signed their names thereto is wholly immaterial."

There was testimony tending to prove that S. M. Farnesworth, one of the witnesses to the will, signed his name to the will as a witness before Miss Slemmons, the testatrix, had signed the will; that she signed immediately after this witness; that the will was then signed by the other witness, all one continuous and uninterrupted transaction, and in the presence of each other. The provision of the code, Section 10505, regarding the execution of wills is as follows:

"Except nuncupative wills, every last will and testament must be in writing, but may be handwritten or typewritten. 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."

In order to make a valid will the code requirements must be followed, and one of the essentials to the execution of a will is that it must be attested and subscribed in the presence of the testator by two witnesses, who either saw him subscribe or heard him acknowledge signing the will. The question then arises whether, if the witness to the will signed before the testator had signed, is it an attesting and subscribing as required by this statute?

This question first came before the English courts in a construction of Act 1, Viet., C. 26, Section 9. There it was held that it was necessary to the validity of the will that the testator sign the will before the witnesses signed. The provision of the English act was similar to the act of this state quoted above.

Some of the courts of this country have followed the decisions of the English courts, notably the New York Court of Appeals in Jackson v. Jackson, 39 N. Y., 153, and followed by that court in later decisions.

The Supreme Court of Massachusetts has also given a similar construction to the statute of that state in Barnes v. Chase, 208 Mass., 490 (94 N. E., 694).

The courts of Georgia have placed a like construction upon their statute. Lane v. Lane, 125 Ga., 368 (54 S. E., 90).

But the courts of many of the other states have placed a contrary construction upon the statutes of their respective states providing for the execution of a will.

"The view that seems to have the weight of modern authority is that in acts substantially contemporaneous it can not be said that there is any substantial priority,' and that where the execution is completed at one transaction it can not be held that the will is rendered invalid because one or more of the witnesses signed before the testator.' Page on Wills, Section 222.

The principle announced by Page has the support of the following cases: O'Brien v. Gallagher, 25 Conn., 229; Gibson v. Nelson, 181 Ill., 122 (52 N. E., 901); Sechrest v. Edwards, 61 Ky., 163; Lacey v. Dobbs, 44 Atl., 481; Cutler v. Cutler, 130 N. C., 1 (40 S. E., 689); Miller v. McNiel, 35 Pa. St., 217 (78 Am. Dec., 333); Kaufman v. Caughman, 49 S. C., 159 (27 S. E., 16); In re Silva's Estate, 145 Pac., 1015; Horn's Estate v. Bartow, 125 N. W., 696; In re Shapter's Estate, 35 Col., 575 (85 Pac., 688).

The object of requiring the execution of wills in order to render them valid to conform to a statutory formula, is to prevent fraud upon heirs at law in the distribution of the estate of their ancestors, and courts in the construction of these provisions should have this object in mind, and should not place such a

liberal construction, in order to sustain the execution, that the object of the statute would be destroyed. But when all the provisions of the statute are followed, the order in which the signatures of the testator and the witnesses are affixed to the will is not essential.

The Supreme Court of Kentucky in Sechrest v. Edwards, supra, say:

"Nor can it be material whether the names of the attesting witnesses or that of the testator should have been first subscribed, if, as in this case, the witnesses had been present when the testator wrote his name, and, being called for that purthe fact."

* * *

pose, actually witnessed

The statute does not expressly provide the order in which the signatures of the testator and the witnesses shall be subscribed to the will; all that it requires is that the will shall be attested and subscribed in the presence of the testator. If the persons who are present are told by the testator that he desires to execute his will by signing the paper writing there present, and that he desires these persons to sign the paper as witnesses thereto, the order of signing is not essential, if the signatures of the testator and that of the witnesses are subscribed at one continuous transaction.

The chances of fraud or imposition in the execution of the will are not increased by reason of one of the witnesses signing before the testator, where the testator signs immediately thereafter, and in the presence of the witness, if the will is otherwise regularly executed.

Harsh and unnecessarily technical rules of construction should not be required in the execution of a will which may defeat the right to dispose of property by will, where the statute does not expressly imply such a requirement, and the formalities of the statute are substantially followed.

Miss Slemmons had a right to dispose of her property by will, and she should not be deprived of that right through some defect in the execution of her will, unless it is material.

Mr. Farnesworth, one of the witnesses to the will, is the only one who testified that he signed the will before the testatrix.

He says he was called into the room where Miss Slemmons was; that after some talk with her regarding her desire to execute the will, and that she desired he be one of the witnesses, he took the paper and signed it, handed it to Miss Slemmons, and she signed. and handed it to the other witness, and it was signed by that witness.

Other errors were urged by plaintiffs, but we do not find that any of them are well taken, and they are not of enough importance to merit further comment here. The judgment is affirmed.

SPENCE, J., and METCALFE, J., concur.

CONSTRUCTION OF AN ILLITERATE WILL.

Court of Appeals for Knox County.

FLORENCE E. MILLER V. WILLIAM I. CLINE ET AL.

Decided, May 20, 1916.

Wills-Construction to be Adopted-Where Evidently Drawn by a Layman—Unfamiliar With Grammatical Rules or Punctuation-Most Obvious Meaning Must be Sought and Adopted.

The illiterate will involved in the instant case is construed by the court in the manner which gives to the words and sentences used the meaning which it seems most probable the testator intended to convey.

L. C. Stillwell, for plaintiff in error.

Columbus Ewalt, contra.

HOUCK, J.

This is an action praying the direction of the court in regard to the construction of the last will and testament of Hugh A. Miller, deceased.

On the 20th day of December, 1907, Hugh A. Miller, then a resident of Clay township, Knox county, Ohio, made and executed a paper writing which he intended as and for his last will

and testament. On the 20th day of March, 1908, the said Hugh A. Miller departed this life, leaving no issue or other legal representatives, but leaving his widow, Florence E. Miller, surviving him. On the 6th day of April, 1908, said will was duly admitted to probate and recorded in the Probate Court of Knox County, Ohio, the same being in the words and figures following:

"First. I desire that all my just debts and funeral expenses be paid as soon as practicable after my decease.

"Second. I give and bequeath to my beloved wife all of my property both real and personal consisting of the farm on which we now reside situated in clay Township Knox county. Ohio being eighty Six acres, and one farm containing one hundred and Sixty Six acres in Harrison Township Knox county Ohio during her natural life and all the Stock house hold goods furniture provisions and other goods and chattels which may be thereon. and all moneys If any at the time of my decease without making any appraisement or Sale of Such property only as my wife deems best either public or private I make a request of my wife at the time Albert. Summit. a foster boy that we are raising If he still continues of being a good boy to both of us until he is twenty one years old for my wife, Florence E Miller, to give. him Two thousand dollars in money If my wife Should marry again I want all of Said property to be and to be kept in my wifes name during her life and after my wifes death, I want the property If there Should be any, I give to Albert Summit. one half of what is left. and the other half to be given to the Trustees of the Baptist Church of Martinsburg Ohio, for the benifit of Said Church as they think best.

"I nominate and appoint Florence, E Miller to be the executrix of this Will, without bond."

We are required to construe this will in order to determine the nature and extent of the estates of Florence E. Miller, the surviving widow, the Baptist Church, of Martinsburg, Ohio, and Albert Summit, the foster son of testator. It will be observed from the language and punctuation used in said will that the scrivener was not skilled in the drawing of wills, and in all such cases the aim and object of the interpreting court is and must be, if possible, to dispel the effect of some careless, incorrect or ignorant use of language or improper punctuation on