| Ohio | Dec 15, 1876
The will in question was attested by three witnesses. But one of them was before the probate court at the time the will was admitted to probate. His testimony, as reduced to writing, is in the usual fonn of that of an .attesting witness, and also to the genuineness of the signature of another of the attesting witnesses, who, he testifies, was present at the execution of the will and attested it in his presence, and that the place of residence of the witness was then unknown, to him. Upon this testimony the will was probated and recorded without the third witness being ■ called, or his absence accounted for.
There can be no question but that the application to admit the will to probate was within the jurisdiction of the •court in which it was made.
Will error lie to reverse the order of probate thus made?
There are two grounds upon which a majority of the • court think the question must be answered in the negative.
1. The second section of the probate act (S. & C. 1212), gives the probate court exclusive jurisdiction to “ take the proof of wills.” The only direction to which he is subject in respect to the quantity of proof that he shall be required to take on the proof of any will is contained in the twelfth section of the wills’ act (S. & C. 1617), which provides: •“ The court shall cause-the witnesses to such will, and such ■ other witnesses as any person interested in having the same .admitted to probate may desire, to come before such court, and such witnesses shall be examined in open court and their testimony reduced to writing and filed.”
• This section in terms requires the witnesses to the will to be brought before the court and examined at the time the will is probated, and although the practice of only calling two witnesses, where more than this number have attested the will, prevails in many counties of the state, the better practice would be to take the testimony of all such witnesses, or to have -the reason or reasons why they were not called entered upon the l’ecord. The testator may have , liad reasons for calling more than two persons to attest the • due execution of his will, and such persons as he saw proper
The practice above alluded to probably grew out of the provisions of the second section of the wills’ act (S. & C. 1616), which, among other things, requires that every last will and testament shall be signed by the testator at the end thereof, and subscribed in his presence “ by two or more ■competent witnesses,” etc. If two attesting witnesses arc all that are required to the execution of the will, it was .-quite natural that it should have been assumed that this number were all that need be called to prove it; and in the .absence of the twelfth section, above quoted, the conclusion -would be legitimate. But in this ease two of the three -witnesses to the will were not called, nor was the absence ,of one of them accounted for.
The court proceeded under the thirteenth section of the ■wills’ act-(S. & C. 1617), which provides that: ‘‘If it shall, .-appear to the court, when the will is offered for probate, that any witness thereto is gone to parts unknown . . . -the will maybe admitted to probate, and allowed upon such -proof as would be satisfactory, and in like manner as if such • :absent . . . witness were dead.”
Now, if the absence of the third witness had been satisfactorily accounted for to the court, and the fact made ■ -part of the record, the proceeding would have been sub-. btantially regular, according to the practice first spoken of; :and inasmuch as the probate court is clothed with judicial, power, and had exclusive jurisdiction of the subject, we -,think it may be fairly presumed that the absence of the.
If this fact is presumed, then the fifteenth section of the wills act (S. & C. 1618) shows that the court had only to be judicially satisfied “that such will was duly attested and executed, and that the testator, at the time of executing the same, was of full age, of sound mind and memory, and not under any restraint,” in order to require its admission to probate. The record shows that the court found, upon testimony, that the will was executed as required by this section. And the court having thus acted judicially in a matter over which it had exclusive jurisdiction, we do not think that this judicial action can be reviewed on error, or the judgment reversed on a review of the testimony upon which the order of probate was made in this case.
But this point is only incidental, and there is another ground upon which the decision may be safely placed, and the proceedings of the probate court sustained.
2. The second ground for refusing, on error, to reverse the order admitting the will to probate, is : That the mode of contesting the validity of a will after probate, which is expressly given by statute, is exclusive and must be pursued.
The provisions of our statutes bearing upon this proposition are as follows:
The nineteenth section of the wills act (S. & C. 1618) declares the effect of the probate as follows : “ If no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate shall be for ever binding, saving, however, to infants, married women, and persons absent from the state, or of insane mind, or in captivity, the like period after the respective disabilities are removed,”
A provision, in language slightly different, but in effect the same, was first introduced into. the wills act, of February 18, 1808 (1 Chase, 571), and, 'so far as it affects the question before us, has continued to constitute a part of the
The twenty-fourth section of the probate act (S. & C. 1216) provides the only mode^of avoiding the effect'of the-section last quoted, which is as follows: “When a will shall be admitted to probate in the probate court or court of common pleas on appeal, any person interested shall have a right to contest its validity, by petition to the court of common pleas of the proper county, and upon filing such petition the clerk of the court of common pleas shall certify that fact to the probate court in which the will was admitted to probate.”
Prior to the adoption of this section and the code of civil procedure, the only mode of contest was hy a bill in chancery, in which an issue was directed to be tried by a jury. But this is of no importance here, except to say that the-result to be reached by either mode was a trial of the validity of the will in question, and the right of contest in one- or the other of the modes has always existed in this state.
In considering questions the same or similar in their nature to the one before us, this court has always construed the principles involved in these sections together, and the-adjudicated cases seem to rest upon considerations of public policy drawn from their provisions.
While an instrument in the - form of a last will and testament, that has been probated and recorded as a will, whether it is truly such or not, is permitted to remain unimpeached, the nineteenth section above quoted gives it the effect of a valid will, which, if not contested within the time limited, will become binding as such forever.
This construction was required in order to save contro- : versies in respect to wills after the lapse of years, in which v witnesses may have died or gone to parts unknown, and also in order to secure from litigation and controversy persons who hold title to lands by devise or under those who took by devise; and in view of these and kindred consid
We are therefore of the opinion that the only mode of contesting the validity of a will that has been admitted to probate, is that provided by the two sections last above quoted. If those interested neglect to pursue the mode of contest there pointed out, the considerations above noticed drawn from the sections quoted, require that their rights should be forever barred.
Judgment affirmed.