constitute the will. "The act of authentication must take place at the termination of the testamentary disposition." McGuire v. Kerr, 2 Bradf. Sur. (N. Y.) 244. "To say that, where the name is, there is the end of the will, is not to observe the statute. That requires that, where the end of the will is, there shall be the name. It is to make a new law to say that, when we find the name, there is the end of the will. The instrument offered is to be scanned to learn where is the end of it, as a completed whole, and at the end thus found must the name of the testator be subscribed." Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of O'Neil's Will, 91 N. Y. 522; Matter of Andrews, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294. The requirement that the name shall be subscribed "at" the end of the will is not satisfied by having that name written at any place "after" the termination of the written matter, irrespective of the relation which such place bears to the concluding portion of the will. This provision does not, however, of necessity, require that it shall be in immediate juxtaposition with the concluding words of the instrument, but that it shall be so near thereto as to afford a reasonable inference that the testator thereby intended to indicate an authentication of the instrument as a completed expression of his testamentary purposes. It must appear upon the face of the instrument not only that he intended to place it at the end of his testamentary provisions, but that he has in fact placed it in such proximity thereto as to constitute a substantial compliance with this requirement of the statute. While a slight space, such as a single line, or even more, might be left blank between the written matter and the name, without impairing the validity of the will, yet to leave blank an entire page between the two would indicate a disregard of the requirements of the statute, whether resulting from ignorance or intention, which would prevent its admission to probate. See Soward v. Soward, 1 Duv. (Ky.) 126. Appellants have cited the case of Gilman's Will, 38 Barb. (N. Y.) 364, in which the written matter of the will terminated four lines above the bottom of the page where the testator signed his name, and in which the court said: "An instrument is signed at the end when nothing intervenes between the instrument and the subscription. The place named in the statute is the end. The end of an instrument in writing commences and continues until something else or some other writing occurs." This language may have been appropriate to the will then before the court, but, as a construction to be given to the statute, it does not meet with our approval, and is, moreover, incon- ! sistent with the construction given in the above cases cited from the Court of Appeals of that state. Particularly do we dissent from the definition of "end" as given in the last sentence of the quotation. The formalities which the Legislature has prescribed for the execution of wills are to provide against false and fraudulent wills, and to afford means of determining their authenticity. A very evident の purpose reghi 124 purpose of requiring the testator's name to be subscribed at the end of the will is not only that it may thereby appear upon the face of the instrument that the testamentary purpose which is expressed therein is a completed act, but also to prevent any opportunity for fraud ulent or other interpolations between the written matter and the sig nature. McGuire v. Kerr, 2 Bradf. Sur. (N. Y.) 244; Matter of O'Neil's Will, 91 N. Y. 516; Matter of Andrews' Will, 43 App. Div. 394, 60 N. Y. Supp. 141; s. c., affirmed, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294; Matter of Hewitt's Will, 91 N. Y. 261; Matter of Conway's Will, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796; Soward v. Soward, 1 Duv. (Ky.) 126; Ramsey v. Ramsey, 13 Grat. (Va.) 664, 70 Am. Dec. 438; Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775; Wineland's Appeal, 118Pa. 37, 12 Atl. 301, 4 Am. St. Rep. 571. "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" (Sisters of Charity v. Kelly, 67 N. Y. 409) "or by judicial construction" (Matter of Whitney, 153 N. Y. 259, 47 N. E. 272, 60 Am. St. Rep. 616), "or defeated by lax. interpretation" (Glancy v. Glancy, 17 Ohio St. 134). "The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execution, and the statute should be so construed as to accomplish this pur-pose." Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156. It is immaterial that there is no charge of fraud in any particularcase. A failure to comply with the formalities required by a statute enacted for the prevention of fraud is not excused by showing that inthe particular case under consideration there was no fraud. The statute in question was enacted to protect the wills of the dead from alteration. If opportunity for such alteration is permitted, the fraud may be so deftly accomplished as to prevent its discovery, and for this reason the construction to be given the statute should be such as will control the execution of all wills. "The legislative intent was doubtless to guard against fraud and uncertainty in the testamentary disposition of property by prescribing fixed and certain rules by which to determine the validity of all instruments purporting to be wills of deceased persons." Matter of the Will of O'Neil, 91 N. Y. 516. It is true, as suggested by the appellants, that there is the sameopportunity for fraudulent interpolations in the will if the testator should leave sufficient space there for between the several items of his will. But it is a sufficient answer to this suggestion that the form in which the provisions of a will are drafted is no part of its execution, and that the Legislature has not attempted to prescribe the form in which the testator shall express his testamentary purpose, or in which the will shall be drafted, but only the form in which it is to be "executed and attested." See Heady's Will, 15 Abb. Prac., N. S. (Ñ. Y.). 211; Matter of Collins, 5 Redf. Sur. (N. Y.) 20. In Estate of Blake, 136 Cal. 306, 68 Pac. 827, 89 Am. St. Rep. 135, the testator left a blank space of several lines between the items in which he disposed. of his property and the items appointing an executor and revoking his former will. These last items were, however, testamentary provisions (Sisters of Charity v. Kelly, 67 N. Y. 415); and, as they constituted a part of his will, the end thereof was not reached until they had been written upon the paper, and, as his name was subscribed to the testamentary clause, which immediately followed these items, it was held that it was subscribed at the end of the will. A question similar to the one involved herein was presented in Soward v. Soward, 1 Duv. 126. The statute of Kentucky required the witnesses, as well as the testator, to "subscribe" the will with their names, which the courts of that state construed to mean that they should write their names at the close of the will. In the will then before the court the witnesses wrote their names, as did the testator in the present case, on the outside or fourth page of the sheet after it had been folded, and across it as so folded. The court held that this was not a compliance with the statute, saying: "So far from subscribing their names to the will, it may be said with much more propriety and accuracy of speech that they merely indorsed the paper enveloping and inclosing the will, without any accompanying writing) or memorandum to indicate the purpose of the indorsement, or showing any connection whatever between the indorsement and the will.") In Roy v. Roy's Ex'r, 16 Grat. (Va.) 418, 84 Am. Dec. 696, the sheet of paper upon which the will was written was folded in the form of a letter, and the words, "David M. Roy's Will," were indorsed upon the back in the handwriting of the deceased at about the middle of the third page when the paper was unfolded. His name was not signed at the end of the writing. The court held that it was not entitled to probate, saying: "It is an unusual mode of signing or authenticating a paper as a concluded act by indorsing the name of the person executing it on the back. Such indorsement is usually made as a label or mark to distinguish it from other papers, and probably it never occurred to the deceased that it was to have any other function in this case." The same rule was followed in Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775; Patterson v. Ransom, 55 Ind. 402. Whether the deceased intended to execute his will in conformity with the requirements of the statute cannot be shown by parol or extrinsic evidence. Parol evidence cannot be admitted to show that the testator intended the space signed by him to be the end of the will, if, upon an inspection of the instrument, it appears that it is not in fact at the end. Evidence will not be received for the purpose of showing that he intended to comply with the requirements of the statute if it appears upon the face of the instrument that he had not in fact so complied. It must appear upon the face of the will itself that its 19344 From a decree refusing an issue devisavit vel non in estate of Hetty W. Swire, deceased, Samuel T. McGinley appeals. The case turned upon whether the testatrix had signed the codicil ́ to her will at the end thereof. codicil was as follows: The "9. I give and bequeath a Dining Room Table Cover "12. I give and bequeath all the rest residue and re- Owen I Second Codicil to Will. "I, Hetty Wharton Swire, do hereby make and publish this Second Codicil to my last will and testament as follows: "1. I give and bequeath unto Lily McGinley my seal skin coat. "2. I give and bequeath unto Edna Pennock my black and white check silk dress. "3. I give and bequeath unto Mrs. William McGinley (Fortieth Street) my cut glass ware. "4. I give and bequeath unto Lizzie Gibbs my cloth coat. "5. I give and bequeath unto James P. Cairns the large pictures of my husband, David Owen Swire, and myself. "6. I give and bequeath unto Lewis E. Herring the ornaments on the mantel in the parlor of my residence No. 5000 Walton Avenue, Philadelphia. "7. I give and bequeath unto the Misses Bradley and to Mrs. Clara Mitchell, my other dresses. "8. I give and bequeath unto my Cousin Benjamin Bradley my Knit Slumber Robe. "In Witness Whereof I have hereunto set my hand and seal this Twentieth day of April, A. D. One thousand nine hundred and six (1906). "Hetty W. Swire. [Seal] "Signed, sealed, published and declared by the above named Hetty W. Swire as and for a Second Codicil to her last will and testament in the presence of us who at her request in her presence and in the presence of each other have hereunto subscribed our names as witEdna Pennock, "Alfred Moore." nesses. 16 See Sears v. Sears, 77 Ohio St. 104, 82 N. E. 1067, 17 L. R. A. (N. S.) 353 (1907); In re Gibson's Will, 128 App. Div. 769, 113 N. Y. Supp. 266 (1908). But see David S. Baker's Appeal, 107 Pa. 381, 52 Am. Rep. 478 (1885); Morrow's Estate, 204 Pa. 479, 54 Atl. 313 (1903). "Thus the general principle MITCHELL, C. J. The statute requires that a will shall be in writing, and signed by the testator "at the end thereof." The end meant by this provision is the logical end of the language used, which shows that the testamentary purpose has been fully expressed. The position of the signature with regard to the bottom or end of the page is only evidence on the question whether the testator has completed the expression of his intention. Prima facie that is the natural place for the signature to be placed to show the full expression of the testator's wishes and therefore is presumptively the right place for it, but it is only evidence and must give way to evidence of a different intent. In Hays v. Harden, 6 Pa. 409, Chief Justice Gibson says: "Signing at the end of a will was required by the statute to prevent the evasion of its provisions that followed the English statute of frauds, which the judges held to be satisfied wherever the testator's name, in his own handwriting, was found in the introductory or any other part of the instrument." In Heise v. Heise, 31 Pa. 246, Strong, J., says: "Nor should we lose sight of the mischiefs which existed at the time when it [the statute] was enacted, mischiefs which it was designed to remedy. Among these, none was more serious than the facility, with which unfinished papers, mere inchoate expressions of intention, were admitted to probate as valid wills of decedents. Letters, memoranda, mere notes unsigned, which were entirely consistent with a half formed purpose, and which may have been thrown aside, and never intended to be operative, were rescued from their abandonment, proven as wills, and allowed to prevail as dispositions of property which there was much reason to believe the decedent never in has been clearly established that a will is to be read in such order of pages or paragraphs as the testator manifestly intended, and the coherence and adaptation of the parts clearly require. In writing a will upon the pages of foolscap paper, a testator may or may not conform to the order of the consecutive pages of the folio; there is no law which binds him in this re spect; he may begin upon the fourth page of the folio and conclude upon the first, or he may commence upon the first, continue upon the third, and conclude upon the second; in whatever order of pages it may be written, however, it is to be read, as in Wikoff's Appeal, 3 Harris [15 Pa.] 281 [53 Am. Dec. 597], according to their internal sense, their coherence or adaptation of parts. The order of connection, however, must manifestly appear upon the face of the will; it cannot be established by extrinsic proof. Whilst, therefore, the end of the writing in point of space may in most cases be taken as the end of the disposition, it does not follow that in all cases the signature must, of necessity, be there written, if it be written at the end of the will, according to such connection and arrangement of the pages or sheets, as the obviously inherent sense of the instrument requires." Clark, J., in David S. Baker's Appeal, 107 Pa. 381, 392, 52 Am. Rep. 478 (1885). In Mader v. Apple, 80 Ohio St. 691, 89 N. E. 37, 23 L. R. A. (N. S.) 515 (1909) there was a blank space amounting to 231⁄2 inches between the end of the dispositive portions of the will on page 2 and the testimonium clause and signature of the testatrix near the bottom of page 3, and yet it was held that the will was signed at the end. Where a testatrix signed in the attestation clause, the will was held to have been signed at the end. In re De Hart's Will (Sur.) 122 N. Y. Supp. 220 (1910). On signing at the end of the will, see 2 Am. & Eng. Ann. Cas. 730, note; 11 Am. & Eng. Ann. Cas. 1013, note; 17 L. R. A. (N. S.) 353, note; 23 L. R. A. (N. S.) 515, note. |