Brown and Others v. McAlister and Others. The statute provides, that "no will except a noncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence, with his consent, and attested and subscribed in his presence by two or more competent witnesses." 2 G. & H. 555, sec. 18. The question raised by the pleading is, whether, in order to a due execution of a will, it is necessary that the testator should in any manner indicate to the witnesses who are called upon to attest the same, that the instrument or document thus to be executed and attested is the will of the party executing the same. We have been favored with able and exhaustive briefs on this question, by the counsel on each side of the cause, who have, respectively, cited a large number of cases and text books bearing upon the question. We shall not go into a discussion of the authorities upon this question; they are in some degree conflicting. We may quote the following pas: sage from an elementary writer: "The mere fact that one calls upon witnesses to subscribe a paper, as witnesses of its execution, is, no doubt, abundant evidence of his acknowlment that he executed it. And the distinction may be rather nice, when it is admitted the witness need not know the contents of a will, to argue that they should be made aware, either by word or act, that the testator declared or recognized, in some way, the paper to be his will. But such would seem to be the fair implication of the word attested, in the statute in regard to the execution of wills. But the weight of authority seems to be in the opposite direction." I Redfield on Wills, 223. We are satisfied that the weight of authority is as stated in the above quotation, and, therefore, that the will in question was duly executed. The judgment below is affirmed, with costs. DOWNEY, J.-I fully concur in the result announced in the foregoing opinion, but I do not agree that the question raised for our decision is that stated in the opinion. The question same. Brown and Others v. McAlister and Others. is not, in my judgment, whether, in order to a due execution of a will, it is necessary that the testator should in any manner indicate to the witnesses who are called upon to attest the same, that the instrument or document thus to be executed and attested is the will of the party executing the The opinion, by answering this question in the negative, does, in my judgment, decide more than is involved in the case. There were indications, and very strong ones too, that the paper was a will. The very fact that it was to be signed in the presence of two witnesses and attested and subscribed by them, which ceremony does not, by our law, attend the execution of any other instrument, and that it was so executed, indicated that it was a will. Hence I think that the court need not, and should not, in this case, decide that no "indication" of its being a will is necessary to its validity. But as it is shown by the facts that the testatrix went to the persons who were chosen by her to be the witnesses, produced the paper already written, told them that she desired them to witness her signature, and thereupon signed the paper in the presence of the witnesses, who then and there wrote their names to it as witnesses, the question in the case is, whether or not it was necessary that she should, in addition, have stated to the witnesses that it was her will. I decide that it was not necessary that she should have made such statement, and that the will was properly signed by the testatrix and attested and subscribed by the witnesses without such statement. A. Iglehart and F. F. Chandler, for appellants. F. M. Shackelford, L. Q. DeBruler, and C. A. DeBruler, for appellees. Biddle v. Reed. THE BOARD OF COMMISSIONERS of MORGAN COUNTY V. TARLETON and Another. APPEAL from the Morgan Common Pleas. WORDEN, J.-We affirm the judgment in this case upon the authority of the case of the same appellant against Holman and another, decided at the present term of this court, ante, p. 256, as that case decides all the questions involved in this. The judgment below is affirmed, with costs. IV. R. Harrison and W. S. Shirley, for appellant. C. F. McNutt, W. A. Montgomery, and G. W. Grubbs, for appellees. Biddle v. Reed. APPEAL from the Allen Circuit Court. DOWNEY, J.-This was an action by the appellee against the appellant for the recovery of other instalments of rent on the same lease that was the foundation of the action in the case between the same parties, decided by this court at the present term, 33 Ind. 529. The defenses were the same, and the questions presented here are the same, as in that case. For the reasons there given, the judgment is affirmed, with five per cent. damages and costs. L. M. Ninde, for appellant. 7. A. Fay, for appellee. Hereth and Another v. The Merchants' National Bank of Indianapolis. HERETH and Another v. DAVIS and Others. APPEAL from the Marion Common Pleas. DOWNEY, J.-This action was upon two promissory notes similiar to the note in the case at this term by the same appellants against Meyer (33 Ind. 511), executed at the same time and for the same consideration as the note in that case. There was a trial by jury, verdict and judgment for the appellees. Motion for a new trial overruled, bill of exceptions copied into the record, but not signed by the judge. There is no question in the case not already decided by this court in the case to which we have referred. The judgment is affirmed, with two per cent. damages and costs. F. E. McDonald, A. L. Roache, E. M. McDonald, J. M. Butler, P. W. Bartholomew. A. G. Porter, B. Harrison, and W. P. Fishback, for appellants. F. Rand and R. H. Hall, for appellees. HERETH and Another v. THE MERCHANTS' NATIONAL BANK OF INDIANAPOLIS. PROMISSORY NOTE.-Payable in Bank.-Indorsee.—In a suit on a promissory note made payable to order or bearer in a bank in this State, brought by an indorsee against the maker, the fact that the note was procured by fraud does not constitute a good defense, if the plaintiff purchased the note for a valuable consideration, in the usual course of business, before it was due, and without notice of the fraud. SAME.-Patent Right.-The words, "this note is given for patent right," written on the margin of such a note will not authorize the jury in such action on said note to infer that any indorsee thereof had knowledge or notice that the patent for which the note was given was of no value, or that the note was procured by fraud. Hereth and Another v. The Merchants' National Bank of Indianapolis. SAME.-Purchaser with Notice.-Where such a note has been procured of the maker by the fraud of the payee, by whom it has been indorsed to a third person, another person who has purchased the note of such indorsee with actual knowledge that it was so procured, or with notice of any facts indicating to a reasonably prudent man that it was so procured, cannot recover in a suit on the note against the maker, unless said third person of whom he purchased it was an innocent holder for value. SAME.-Purchaser from Innocent Holder.-A person to whom a promissory note governed by the law merchant has been transferred or indorsed, for a valuable consideration, before it was due, by an innocent holder thereof for value, may recover on it against the maker, though he knew at the time he purchased it that it had been procured of the maker by the fraud of the payee. SAME.-Holder in Good Faith.-One who purchases a promissory note negotiable by the law merchant, for a valuable consideration, before maturity, without notice of any equities existing between the original parties to the note, or of any fraud having been used to procure the execution of the note, is to be deemed a holder in good faith. SAME.-Notice.-Inadequacy of Price.-Whether inadequacy of the price asked for a note offered for sale is a circumstance indicating to the purchaser that it was procured by fraud, is a question for the jury. APPEAL from the Marion Common Pleas. DOWNEY, J.-This was an action predicated upon a promissory note, payable at a bank in this State, and having in the margin thereof the words, "This given for patent right." It was payable to one Hartwell, by him indorsed to Noble, and by him to the appellee. It was executed at the same time, and for the same consideration, as the note in the case decided at this term in which Hereth and another were appellants and Meyer was appellee, 33 Ind. 511. The defense set up was the same as the defense in that case. The jury found for the plaintiff, and in answer to interrogatories, found that neither Noble nor the appellee had any notice of any defense to the note, at or before the time when they purchased the note. The case is before us on the alleged error of the common pleas in refusing a new trial. The evidence is set out in the bill of exceptions, and also certain charges which the court refused to give, and others which were given, to which the appellants excepted. There is a preliminary question. In the record there are |