where the end of the will is, there shall be the name. It is to make a new law to say that where we find the name, there is the end of the will. The statutory provision requiring the subscription of the name to be at the end is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions."

It will be seen, in all of the cases cited, there was no reason to doubt the testator's intention to make a valid disposition of his property; and yet in each case the will was denied probate, because in the execution thereof the testator did not conform to the provisions of the statute, in failing to place his signature at the physical end of the will.

It is claimed by the counsel for appellant that the clause in question may be regarded as an interlineation, and thus held to be constructively a part of the body of the will. We think that this claim cannot be supported without opening the door to all of the evils which the statute was intended to prevent, and substantially abrogating its wholesome provisions. The same argument would validate the addition of a fourteenth paragraph to the unauthenticated lines appearing on the fourth page, and lead, by logical deduction, to indefinite extension.

It is said, also, that the cases holding that a paper or document referred to in the body of a will may be considered as a part thereof, afford support to the construction claimed by appellant's counsel. It is not believed that any paper or document containing testamentary provisions not authenticated according to the provisions of our statute of wills has yet been held to be a part of a valid testamentary disposition of property, simply because it was referred to in the body of the will. It was held in Tonnele v. Hall, 4 N. Y. 140, that a map appearing after the signature upon a will, and said to be a reduced copy of a map made by the testator of his real estate and filed in the county clerk's office of New York, and which was referred to in the body of the will, did not require the signature of the testator and witnesses to follow it in order to make it a part of the will. It is to be observed that the paper there in question was referred to merely to identify the subject devised, and contained no testamentary provisions. It is further to be observed that the will in the case cited was complete without such additions,

and that the maps could probably have been used as evidence to identify the property devised, even if no reference had been made thereto in the will. Independent of authority, the argument, upon principle, leads inevitably to the conclusion that the will was improperly executed. The signatures to it are confessedly between the various operative and disposing parts of the instrument, and in no sense at the literal or physical end of the will. That the signatures are where the testator intended the will should end, we have already seen, is not a material circumstance. A blank space covering two-thirds of a page of foolscap paper is left immediately after the language we are invited to insert in the will, and no possible guard is provided against the addition thereto of any such provision as the person in possession of this paper may be tempted to make. There can be no answer to the proposition that to uphold this will is to defeat the object of the statute in requiring a will to be subscribed at the end. The opportunity of adding indefinitely to a testamentary provision will be legalized by so holding, and the statute, instead of establishing an inflexible rule by which to determine the proper execution of a will, will be open to as many different constructions as varying circumstances may invite.

We thus arrive at the conclusion that the will in question was not properly executed, and it cannot, therefore, be admitted to probate. The claim that such parts of the will as precede the signatures may be received and the remainder rejected, cannot be supported. The statute denies probate to a will not executed. in accordance with its provisions. It is either valid or invalid, as an entirety, as far as its execution is concerned. It is undeniable that the portion following the testator's signature contains material provisions, and formed part of his scheme in making a will. At all events, we have no way of determining the extent to which he deemed them material, and cannot give effect to one part, and deny force to another. This point was decided adversely to the appellant in Sisters of Charity v. Kelly and other cases above cited. The judgment should be affirmed. All concur, except RAPALLO, J., not voting.

Judgment affirmed.

Attestation and Subscription by Witnesses.-Acknowledg

ment, Etc.

IN RE MACKAY'S WILL.

110 N. Y. 611, 18 N. E. Rep. 433. 1888.

Appeal from supreme court, general term, third department. Application to surrogate's court of St. Lawrence county to probate the will of James Mackay, deceased. From a decree refusing probate the executors and legatees appealed to the general term, where the surrogate's decree was affirmed, and they appeal to the court of appeals. For opinion of the general term, see 44 Hun, 571.

EARL, J. The subscribing witnesses came to the dwellinghouse of the deceased by previous appointment, and, while seated at his writing-desk, he said to them: "Gentlemen, what I sent for you for was to sign my last will and testament.” Thereupon he took from his writing-desk the instrument offered for probate, and, laying it before the witnesses, said: "It is now all ready, awaiting your signatures." He then presented the instrument to the witness McCarrier for his signature, and he signed it, saying, as he did so, "I am glad, Father Mackay, you are making your will at this time; I don't suppose it will shorten your life any," to which he replied, "Yes," he wanted it done, and off his mind; and then the witness Mulligan, who had joined in this conversation, signed the instrument, as a witAt the time of exhibiting the instrument to the subscribing witnesses he told them it was his will; but he handed it to them so folded that they could see no part of the writing, except the attestation clause, and they did not see either his signature or seal.

There would undoubtedly have been a formal execution of the will, in compliance with the statutes, if the witnesses had at the time seen the signature of the testator to the will. Subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they

* See Secs. 975-980, Vol. 7, Cyclopedia of Law.

see it. And so it has been held in this court. In Lewis v. Lewis 11 N. Y. 221, where the alleged will was not subscribed by the testator in the presence of the witnesses, and when they signed their names to it it was so folded that they could not see whether it was signed by him or not, and the only acknowledgment or declaration made by him to them, or in their presence, as to the instrument, was, "I declare the within to be my will and deed," it was held that this was not a sufficient acknowledgment of his subscription to the witnesses within the statute. In that case ALLEN, J., writing the opinion, said: "A signature neither seen, identified, nor in any manner referred to as a separate and distinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name to which the signature may or not be at the time subscribed." In Mitchell v. Mitchell, 16 Hun 97, affirmed in this court in 77 N. Y. 596, the deceased came into a store where two persons were,. and produced a paper, and said: "I have a paper which I want you to sign." One of the persons took the paper, and saw what it was and the signature of the deceased. The testator then said: "This is my will; I want you to witness it." Both of the persons thereupon signed the paper as witnesses, under the attestation clause. The deceased then took the paper, and said, "I declare this to be my last will and testament," and delivered it to one of the witnesses for safe-keeping. At the time when this took place the paper had the name of the deceased at the end thereof. It was held that the will was not properly executed, for the reason that one of the witnesses did not see the testator's signature, and as to that witness there was not a sufficient acknowledgment of the signature or a proper attestation. It is true that in Willis v. Mott, 36 N. Y. 486, 491, DAVIES, C. J., writing the opinion of the court, said that "the statute does not require that the testator shall exhibit his subscription to the will at the time he makes the acknowledgment. It would therefore follow that when the subscription is acknowledged to an attesting witness it is not essential that the signature be exhibited to the witness." This is a mere dictum, unnecessary to the decision in that case, and therefore cannot have weight as authority. The formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and im

position. To this end the witnesses should either see the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to be his signature. Otherwise imposition might be possible, and sometimes the purpose of the statute might be frustrated. We think, therefore, that probate of the will was properly refused, and that the judgment below should be affirmed, without costs. All concur.

BASKIN v. BASKIN ET AL.

36 N. Y. 416. 1867.

Appeal from a judgment of the Supreme Court, reversing the decree of the surrogate of Yates County, rejecting the will of William Baskin, deceased. The facts are sufficiently stated in the opinion.

PORTER, J. The mere statement of the facts is decisive of the issue. The will was prepared in the presence of the testator, and under his immediate direction. It received his approval, clause by clause. The whole instrument was then read to him, and he subscribed it in the presence of the draftsman, who, at his request, signed it as an attesting witness. The other witness, Mr. Wilsey, was called in from an adjoining apartment, and the testator told him he wished him to sign the will. The instrument was then on the stand at his bedside, where he had just before subscribed it. Mr. Wilsey saw that his signature was already attached; and the testator, taking the paper thus executed in his hand, in presence of both the witnesses, declared it to be his last will and testament. In compliance with his request, Wilsey then subscribed the attestation clause, which stated that the will was signed and published in the presence of the attesting witnesses. It is clear that the testator intended a complete execution of the instrument; that with this view he signed. it; that he supposed he was acknowledging that he had done so, when he requested Wilsey to attest the truth of the facts stated in the certificate; and that Wilsey so supposed when he certified that he was a witness to the signature as well as the