repugnant to a more general statement. While the affidavit of the printer was insufficient to give jurisdiction over the several heirs-at-law, yet it does not follow that the judgment should be reversed on that ground.

2. The case is quite similar, in the particular mentioned, to O'Dell v. Rogers (44 Wis. 136). In that case it was held that "where the proper County Court, after a hearing at the time and place duly appointed therefor, has admitted a will to probate, issued letters testamentary to the persons named in it as executors, etc., the proceedings, while invalid as to persons not duly notified who did not appear or assent to them, and have done no acts of ratification, are valid as to all who were duly notified, or who appeared or assented to them." (Mohr v. Porter, 51 Wis. 494, 8 N. W. 364; Melms v. Pfister, 59 Wis. 190, 191, 18 N. W. 255; Hemingway v. Reynolds, 98 Wis. 501, 74 N. W. 350; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; S. C., 99 Wis. 271, 74 N. W. 1119; Hubbard v. Railway Co., 104 Wis. 160, 165, 80 N. W. 454, 76 Am. St. Rep. 855. See the statute,

2443, Rev. Stat. 1898.) We must hold that the court had jurisdiction as to such parties as appeared in the case, including the appellant. But to avoid future litigation, the records of the County Court should show jurisdiction of all the heirs-at-law before the administration of the estate.

3. Error is assigned because the Circuit Court failed to make findings. This court has repeatedly held that in equity cases the mere absence of findings of fact does not, of itself, necessitate a reversal, if the evidence supports the judgment. (Disch v. Timm, 101 Wis. 189, 77 N. W. 196, and cases there cited; In re Callahan, 102 Wis. 561, 78 N. W. 750.) So this court has repeatedly held that, on an appeal from an order or judgment admitting or refusing to admit a will to probate, the Circuit Court proceeded as a court of equity. (Bryant v. Pierce, 95 Wis. 338, 70 N. W. 297, and cases there cited.)

4. It it claimed that the paper in question was not executed as the law requires that a will should be executed. This is put upon the ground that one of the subscribing witnesses (Kennedy) testified that he signed before the testator. But the other subscribing witness (Welch) testified that he drew both papers; that the first was signed by Dennis Kerwin in 1890, and the

other in 1899; that, after he wrote the second paper, Dennis Kerwin got up and signed it, and then asked him (Welch) to sign it; and that he (Welch) then said, "Let Mr. Kennedy sign it first;" and that Mr. Kennedy signed it, and then he (Welch) signed it. The paper corroborates Welch, wherein it states. "which I now sign before witnesses," followed by the name of Dennis Kerwin, with the witnesses below. Besides, it is undisputed that the first paper, which is claimed to be the will, was signed and sealed by Dennis Kerwin prior to the time when Kennedy signed as a witness. It is not essential that the testator sign in the presence of the witnesses, if he has in fact signed prior to the time they do. (White v. Trustees, 6 Bing. 310; Welch v. Adams, 63 N. H. 344, I Atl. I, 56 Am. Rep. 521; Hall v. Hall, 17 Pick. 379; Adams v. Field, 21 Vt. 256.) "In the absence of clear proof that the witnesses to a will signed it before the testator did, it will be presumed that the testator signed it first." (Allen v. Griffin, 69 Wis. 530, 35 N. W. 21; O'Hagan's Will, 73 Wis. 78, 40 N. W. 649, 9 Am. St. Rep. 763.) We must hold that the formal execution of the paper was sufficiently proved, to have been executed as a will.

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5. It is claimed that the paper writing in question is void upon its face for uncertainty, and hence should not have been admitted to probate. This is put upon the ground that the instrument purports to give to the two daughters therein named the forty acres of land therein described, or $1,000, but fails to positively state which. By the statutes of this State "the probate of a will of real or personal estate" is conclusive as to its due execution." (§ 2294, Rev. Stat. 1898; In re Valentine's Will, 93 Wis. 50, 67 N. W. 12.) As indicated, the evidence is sufficient to prove the formal execution of the paper as a will. The question recurs whether it is a will. It certainly purports to dispose of property of the testator after his death. There can be no uncertainty as to the objects of his gift being the two daughters named, and hence we are not aided by the citation in 2 Underh. Wills (§ 905). Under the section of the statute cited, a will is not effectual to pass title to any property until it has been duly proved and allowed in the County Court." (Id.) But when so admitted to probate it relates back to the time of the death of the testator, and is to be treated as speaking from

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that moment. (Bridge v. Ward, 35 Wis. 687; Scott v. West, 63 id. 552, 24 N. W. 161, 25 id. 18; Prickett v. Muck, 74 Wis. 205, 42 N. W. 256; Graves v. Mitchell, 90 Wis. 314, 63 N. W. 271; Hall v. Hall, 98 Wis. 193, 201, 73 N. W. 1000; Patton v. Ludington, 103 Wis. 639, 79 N. W. 1073, 74 Am. St. Rep. 910; Jochem v. Dutcher, 104 Wis. 611, 614, 80 N. W. 949.) As indicated, the testator's death occurred March 29, 1899,- nine years after the paper in question was written. When the court comes to construe the will, which has not yet been attempted, but has been expressly reserved, it may be necessary to show what property, if any, the testator left at the time of his death, in order to determine whether any of it passed by the will to the two daughters named. "The admissibility of parol evidence to identify the subject-matter of a legacy or devise" is undoubted. (2 Underh. Wills, § 911.) Thus it has been held in the Supreme Court of the United States that: "A latent ambiguity in a will which may be removed by extrinsic evidence may arise (1) either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or (2) when the will contains a misdescription of the object or subject, as where there is no such person or thing in existence, the person is not the one intended, or the thing does not belong to the testator. When a careful study of the testator's language, applied to the circumstances by which he was surrounded, discloses an inadvertency or mistake in a description of persons or things in a will, which can be corrected without adding to the testator's language, and thus make a different will from that left by him, the correction should be made." (Patch v. White, 117 U. S. 210, 6 Sup. Ct. 710, 29 L. Ed. 860.) Such parol evidence may do away with all possible doubt. It is laid down as a legal maxim that, where two clauses in a will are repugnant one to the other, the last in order shall prevail." (Whart. Leg. Max. p. 65, No. 25.) It is there said, however, that such maxim should be received with some. caution, and "that two apparently contradictory clauses will, if possible, be reconciled so as to carry out the intention of the testator, and so as not to reject either; such contradiction or apparent contradiction consisting most frequently in words only, and not in intention. But where there are two clauses mani

festly repugnant to each other, as two devises of the same thing to different persons, then the maxim holds good, but not without difference of opinion as to how the several devises should be made to operate." Mr. Schouler expresses similar views. (Schouler, Wills, § 478.) Among other things, he there says that "in various instances inconsistent gifts or devises have been reconciled in construction by reading the later one as referring to a possible lapse of the former one, or as dependent upon some contingency which is deducible from the instrument taken as a whole." It has been held in Massachusetts that "the term 'will' includes every kind of testamentary act taking effect from the mind of the testator, and manifested by an instrument in writing," and hence includes an instrument executed as a will in the following terms: "It is my wish that the will that I made be destroyed, and my estate settled according to law." (Bayley v. Bailey, 5 Cush. 245. See also Kelleher v. Kernan, 60 Md. 440.) So it has been recently held in Michigan that a paper executed as a will, stating that it was good to a person therein named, for the amount stated, "as payment for care and attendance" in the testator's last sickness, to be collected out of his estate after his death, provided he died a bachelor, was a will, and not a mere admission of an indebtedness. (Ferris v. Neville [Mich.], 86 N. W. 960, 54 L. R. A. 464.) We are here only concerned with the question whether the paper is in fact a will, and hence whether it was properly admitted to probate. The question of its construction was not determined in the trial court, and is not determined here, except that it is in the form of a will, and was properly admitted to probate as such. The taxable costs. in this court are payable out of the estate.

The judgment of the Circuit Court is affirmed.

NOTE. WHEN WILL VOID FOR UNCERTAINTY IN
QUANTITY OR AMOUNT.

(a) General rules or principles.

(b) Erroneous description.

(c) Provision for support or home.

(d) Illustrative cases.

(a) General rules or principles. If, though the gift is of an uncertain amount, the testator supplies a measure of the bequest, the court will

ascertain how much ought to be expended. On this principle, a direction to the testator's son, who was residuary legatee, to take care and provide for his daughter, a gift to each of the testator's daughters of a house and garden, which house is to be built at the expense of my executors, and a gift of portions to be determined by the testator's wife and children have been held effectual. (Theobald, Wills, p. 66.4 [ed. 1900], citing Broad v. Beavan, 1 Russ. 511, n.; Abraham v. Alman, id. 509; Jackson v. Hamilton, 3 J. & Lat. 702; Buckley v. Buckley, 19 L. R. Ir. 544; Edwardes v. Jones, 35 Beav. 474; Matter of Connecticut [1898], 1 Ir. 337. See also Magistrate of Dundee v. Morris, 3 Macq. 134.) In Winter v. Perratt (6 M. & G. 314, 359) the House of Lords says: "We ought, not without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of the testator may be operative; and, where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than another, before we reject the whole. It is true the heir-at-law shall only be disinherited by clear intention; but if there be ever so little reason in favor of one construction of a devise rather than any other, we are, at least, sure that this is nearer the intention of the testator than that the whole will should be void and the heir let in. The cases when courts have refused to give a devise any effect, on the ground of uncertainty, are those where it was quite impossible to say what was intended or where no intention at all had been expressed, rather than cases where several meanings were suggested and seemed equally entitled to the preference."

If it can be gathered from the words used, that a testator intended to give a particular property to a legatee, but owing to the testator having several properties answering the description in the will, it is impossible to say, either from the will itself, or from extrinsic evidence, which of these several properties the testator referred to, the gift fails for uncertainty, and the court cannot, to avoid an intestacy, construe the will as giving the devisee the option of electing which property he will take. (Asten v. Asten [1894], 3 Ch. 260. And see Boyce v. Boyce, 16 Sim. 476.)

Where a careful study of the testator's language, applied to the circumstances by which he was surrounded, discloses an inadvertency or mistake in a description of persons or things in a will which can be corrected without adding to the testator's language, and thus making a different will from that left by him the correction should be made. (Patch v. White, 117 U. S. 210, 6 S. Ct. 617, 710.)

A will will not be held void for uncertainty in the quantity of the estate to which a trust attaches, where under the terms of the will the amount required can approximately and with reasonable certainty be ascertained or determined upon a hearing. (Matter of Wordin, 64 Conn. 40, 29 Atl. 238.)

Where a bequest is made for charitable purposes, and also for an in