Folliette v. Brett. pendent action, and on this proposition the language of the court on page 172 of the opinion in the case of Taylor v. Fitch, 12 Ohio St. 169, is referred to. That case holds that such proceeding is not, of itself, a civil action, but a special proceeding in an action after judgment, and it is said that the proceedings to vacate the first should be included in the record of the original case, so that there may not be two judgments, both based upon the same claim, should judgment again be rendered against the defendant. There is nothing in the record and transcript before us to indicate that such possibility may occur in this case, unless it may be that the common pleas court gave a new and different number to the special proceedings. Its judgment, however, requires the original action to be retried, and the special proceedings are ended without possibility of further judgment therein. Second, it is said that the petition fails to disclose good grounds for the vacation of the judgment complained of, and that an objection made to the introduction of any evidence under it should have been sustained. It must be conceded that there are some inconsistent allegations in the petition and some that are open to the charge of equivocation, but we find that said petition, among other things, alleges that she retained counsel to defend the original action, filed answer therein, was told by her counsel that the case would not be reached for trial for three years, whereupon she left the city, being ready, willing and able to return at any time to defend and testify as the trial, and so advised her counsel. That she awaited patiently to be notified by her attorney when to appear and testify, but that he withdrew from the case and allowed it to go to trial without defense, in her absence. She further alleges "that she was wholly unapprised and unaware of the withdrawal of her said retained attorney" and that she was without negligence on her part. We think these allegations, considered by themselves, sufficiently allege unavoidable casualty and misfortune, within the purview of the statute. There was no motion or order to com Cuyahoga County Circuit. pel the petitioner to make her allegations more definite and certain, to separately state and number, or to elect upon which claims she would stand. We may therefore disregard the other allegations in her petition and consider it sufficient. The case of Taylor v. Fitch, above referred to, is some authority for this conclusion. Third, it is claimed the bill of exceptions shows that the court improperly admitted evidence tending to establish the plaintiff's defense to the original action. As that defense was triable by a jury, and not by the court, it is said that this was error for which the order should be reversed. We find no prejudice in the admission of this incompetent evidence. The court made no finding or judgment as to the defense submitted, but on the contrary specifically reserved that matter for the consideration of a jury. His order is therefore conclusive that he gave no consideration to the evidence objected to. We can see no reason why the judge should not be advised as to the nature of the defense, as well as of the claims of the plaintiff. Indeed, the defense might have been of an equitable nature, requiring the reformation of a written instrument, for instance, and completely extinguishing the plaintiff's claim. In that event the court could have gone on and determined the merits of the defense, at once, and without a jury. That was not the case here, but we suggest it as exhibiting the greater freedom with which the court can listen to evidence which would be incompetent and prejudicial to bring before a jury. The test of the prejudice of such evidence produced before a judge, is the order or judgment thereafter made by him. We find no error in the order and it is affirmed. Eggleston v. Gardner. WILLS. [Cuyahoga (8th) Circuit Court, February 23, 1907.] Winch, Marvin and Henry, JJ. MAUD EGGLESTON ET AL V. C. H. GARDNER ET AL. 1. Acknowledgment of Will Includes Acknowledgment of Signature. An acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to such paper. 2. Acknowledgment of Will not Required in Presence of both Witnesses at Same Time. It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words. ERROR. Blandin, Rice & Ginn and A. A. Carpenter, for plaintiff in error. H. M. Nason, Carr, Stearns & Chamberlain and Hoyt, Dustin & Kelly, for defendants in error. WINCH, J. This was an action to contest a will. The contestants relied upon lack of testamentary capacity in the testatrix and informality in the execution of the will. The jury found for the will and the only question raised by these proceedings in error is whether the will was executed according to law. We think that the evidence on this subject warranted the verdict of the jury, if the law on the subject was properly charged by the trial judge. Not only the witnesses to the will, but Judge Caldwell, its scrivener, the testatrix's attorney, who was present when the will was signed, testified upon this subject. It appears that the testatrix signed the will in the absence of the attesting witnesses. She then called them into the room, one at a time, and said to each of them: "This is my will, I want you to sign it." The will, with the signature of the testatrix Cuyahoga County Circuit. upon it, was unfolded and spread upon the table, when the witnesses signed their names, in the presence of the testatrix. Plaintiffs in error claim that the will was not properly executed because the testatrix failed to acknowledge to the witnesses that the signature upon the will was her signature; in other words, their claim is that when attesting witnesses do not see the testator subscribe or heard her acknowledge the same. If either clare to them not only that the instrument is her will, but that the signature upon it is her signature. The charge of the court upon this branch of the case is as follows: "Section 5916 R. S. (Sec. 10505 G. C.) provides: Every last will and testament except nuncupative wills hereinafter provided for, shall be in writing or may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence, and by his express direction, and shall 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 the same. "You will thus observe that the person making a will must be of sound mind and memory. "And it must be attested and subscribed in the presence of such party by two or more competent witnesses who saw the testator subscribe or heard her acknowledge the same. If either of these requisites be lacking in the execution or attestation of an instrument produced as the last will and testament of a decedent, such instrument would not be either in law or in fact the will of such decedent. The claim of the plaintiffs in regard to the execution of said instrument is that the decedent did not sign the same in the presence of said witnesses, and that she did not acknowledge the same to be her will or acknowledge her signature thereto in the presence of both of said witnesses, or at least not in the presence of either of them. "It is not necessary, that a testator sign her name to a will in the presence of the witnesses, but where the witnesses do not see the testator subscribe the same, it is necessary to the due execution of the will that she acknowledge such will and her signature thereto to the witnesses; but it is not required that she do this in the presence of both witnesses together or at the same time, nor is it requisite that the witnesses sign their names in the presence of each other. "It is not necessary that any particular form of words be Eggleston v. Gardner. used by the testator in acknowledging either her signature or will. It is sufficient if by words or otherwise she gave the witnesses to understand that the signature and the will were hers, and, if she had already signed her name to the writing, it would be a sufficient acknowledgment both of her signature and of the writing as her will, if she stated to the witnesses, in reference to said writing that the same was her will, or otherwise gave them to understand that the paper was her will. In other words, an acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to such paper. "If, from a fair consideration of all the facts and circumstances as shown by the evidence bearing on this question, offered by both parties, including the signature to the intrument and the statement thereon signed by the subscribing witnesses, Mrs. O'Neal's and Mrs. Wescott's and Judge Caldwell's testimony being included, you believe it more probable that Mrs. Prosser neither signed said writing in the presence of the subscribing witnesses nor acknowledged the same with her signature thereto in the presence of said witnesses, then the weight of the evidence. would preponderate in favor of the claim that she did not so sign or acknowledge such instrument. "If you find from the preponderance of the testimony that the two witnesses whose names are attached to the said writing did not see Mrs. Prosser sign the same; and if you further find that she did not in their presence either acknowledge said writing as her writing with her signature thereto, or acknowledge said writing with her signature affixed thereto as being her will, then your verdict should be that the writing in question is not the last will and testament of said decedent.' The jury returned for further instructions, at which time the court said: "If Mrs. Prosser, in the presence of the witnesses, acknowledged that the paper already signed by her was her will, this would include an acknowledgment of her signature as well as of the instrument as her will. "It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words. It would be sufficient, if by words or otherwise, she gave each of the witnesses, either together or separately to understand that the will with her signature thereto was hers." The court then again read Sec. 5916. The leading case cited by counsel for plaintiffs in error in behalf of this contention that the charge is erroneous, is Chaffee |