ON PETITION FOR REHEARING. In their petition for rehearing, appellees call attention to the case of Reed v. Watson (1867), 27 Ind. 443, and ask that it be considered. That case is not in conflict with the conclusion of this court in the principal opinion. The issues involved in that case, and upon which the decision turned, did not include the issue here involved. Nevertheless, the writer of that opinion, after recounting the facts connected with the signing of the will there under discussion, and after discussing the statute governing the execution of wills which this court has set out in its principal opinion, uses this language: "Without pursuing the subject further here, it is sufficient, for the purpose of this decision, to say, that under the most liberal rulings on the subject to which our attention has been called, it is required that it should clearly appear, from the evidence, that the testator intended to, and did, adopt the name thus written in the body of the instrument as his final signature, and he must, in effect, have declared that fact to the witnesses. . . . But . . . there is no evidence showing an intention, on the part of Reed, to *Page 122 adopt the name at the commencement of the instrument as his final signature, but just the contrary."
The Supreme Court of this state has correctly held that the place of the testator's signature on the will is immaterial.Hallowell v. Hallowell (1882), 88 Ind. 251. See, also,Peace v. Edwards (1915), 170 N.C. 64, 86 S.E. 807, Ann. Cas. 1918A 778.
The case of Bamberger v. Barbour (1929), 335 Ill. 458,167 N.E. 122, cited by appellees in their petition for rehearing, is distinguishable from the case at bar. The witnesses to the purported will of Bamberger testified on the trial that, prior to the execution of the instrument, Bamberger was at a hospital preparing to undergo a surgical operation, and that they had called to pay him a visit; that he told them that he was about to write his will, and that he wanted them to sign it; that the will was written in their presence, and, when so written, they signed their names thereto. The first line of the purported will in that case is as follows: "I — Edwin Durand Bamberger bequeath all of my property," etc. The instrument was not formally signed.
The question in the case was whether Bamberger intended that his name, written by himself, should be regarded as his signature to the instrument. It may be said at the outset that the statute of Illinois governing the execution of wills is materially different from that of this state. The court, in the beginning of its discussion of the question, referring to cases in other jurisdictions in which the same question was involved, said: "Some of them [authorities] hold that this intention may be ascertained from the declaration of the testator and the surrounding circumstances," citing some of the cases cited by this court in the principal opinion. The Illinois court then states that, in that case, the rule can have no application, and, in its argument, used this language: "The evidence discloses no statement of the deceased *Page 123 that the name as written by him was intended as his signature and no declaration of the deceased after the instrument was written that it was his will. The instrument contains no such declaration. That the deceased intended the name to be his signature and that he intended the instrument to be his completed will is not established by the evidence." And again, near the close of its opinion, after citing cases discussed by this court in its principal opinion, the court used this language: "It is impossible to satisfactorily distinguish these cases from those which announce the contrary rule, but the instrument under consideration in each of them, as well as in Lemayne v.Stanley, supra, contained the express declaration that it was the last will and testament of the testator, which is not the case here." In the case at bar, Belle Stockman declared that the instrument written by her was her will, which express declaration is also in the instrument itself. Some parts of the Bamberger opinion are, as we interpret it, mere dicta, and in conflict with the decisions of most of the courts of those states which have adopted the ancient statute of frauds as to the execution of wills.
Rehearing denied.