The opinion of the court was delivered by
Bennett, J.
The only question saved in the county court, in relation to the admission or rejection of testimony, which has been insisted upon in this court, is the one in relation to the comparison of hands. In England it was long held, that a comparison of hand writing was not admissible; but I think, that rule has been modified by modern decisions; and at the present day it would seem their courts admit in evidence comparison of hands, but confine it to documents, which are proved to be genuine, and which are in evidence on the trial of the cause for other purposes.
We, however, in common with several of our sister states, have introduced a broader rule, and have permitted documents, which are proved to be genuine, and which are not otherwise in evidence, to go to the jury, for the purpose of comparison of hands. The genuineness of the document, however, which goes to the jury for the purpose of comparing the contested document with it, must either be admitted, or else established by clear, direct and positive testimony. Unless this is in the first instance done, the testimony should, for obvious reasons, be excluded.
I think it may safely be said, that for at least the last twenty five years our courts, at nisi prius, have admitted the same kind of testimony, as was admitted in the county court; but probably the decisions may not have been uniform. The first time I have known the question before the supreme court was in the case of Butler v. Dixon, decided in Chittenden County in 1832, (not reported.) Since that time I had supposed the question was at rest. In the case of Gifford v. Ford, 5 Vt. 535, comparison of hands was again admitted in evidence. It is true in that case the two signatures, which were compared one with the other, were otherwise put in evidence; but no importance was attached to that circumstance.
If this question were res integra with us, we should be satisfied with the ruling of the county court. See Hammond's Case, 2 [265]*265Greenl. R. 33. Lyon v. Lyman, 9 Conn. 55. Homer v. Hollis, 11 Mass. 309. Moody v. Rowell, 17 Pick. 490. Richardson v. Newcomb, 21 Pick. 315. The leading reason, assigned in England for the exclusion of this kind of testimony, viz., that their jurors could not read or write, does not exist with us; and if it existed, when the rule was established, it was a sufficient reason, why the law was so ruled in those early days. Our jurors are made up of men competent to compare hand writing; and, as matter of daily experience, we know, that comparison of hand writing is at once resorted to, when the mind wishes to satisfy itself in regard to the genuineness of a writing in dispute.
The remaining questions arise under the charge of the court;— and the first is, what will satisfy the statutory requirement of signing? Was the name of this testator in the beginning of the will a sufficient singing, to satisfy the statute? In the case of Lemayne v. Stanley, 3 Lev. 1, the will was in the hand writing of the testator, and such a signing was held'sufficient, within the statute of 29 Charles II., which required all wills of land to be signed. In that case, as in this, the will commenced, “ I, John Stanley, make,” &c. After that decision, the law was regarded as settled in England ; and the case of Lemayne v. Stanley has not only since been followed in that country, but also in our sister states, which have, by legislative enactment, adopted the statute of Charles II. The rule was so effectually established, that courts of justice, though repeatedly solicited, could not be induced to break in upon it. In England they have found, that a statute was necessary to change the law in this particular ; and in the reign of the present Queen one has been passed, requiring a will to be signed at its foot. The same has been done by some of our neighboring states.
It was said in England, and the same has been said in the argument of this cause, that the case of Lemayne v. Stanley was an evasion of the statute and opened a door for the perpetration of frauds, and was so nonsensical, that it ought not to be followed. If that decision had the effect to open a door for the commission of frauds, this certainly is a cogent reason, why it should not have been made in the first place, or since followed. But I am not aware, that such has been its effect. Where the whole will is in the hand writing of the testator, and is attested by three witnesses [266]*266in the presence of the testator, and published by him, as his last will, in their presence, it is difficult for me to see, how the fact, that the signing at the top of the will is held a sufficient signing, can open a door to fraud.
It must be shown, that the will possesses finality, before it can be operative; and to give it this quality, the testator must, at least, at the final execution of the will, adopt the writing of his name, at the beginning of the will, as a signing, and so intend it. I think in New York they have, or have had, a statute, which requires a will to be subscribed by tbe testator; and this, their courts have said, requires a will to be signed at the foot. This was doubtless according to the etymology of the word subscribed; though, if I mistake not, the supreme court of that state held, that the introduction of the word subscribe in their statute, instead of sign, should not change the construction from that, which had been given to the statute of Charles II.; but the court of errors thought otherwise. The etymology of the word “ sign ” does not necessarily require the signing to be at the bottom of the instrument; and it is much a matter of taste, as to the place of signing. If the question were res integra, we might think the bottom of the will was the place, where the statute intended it should be signed by the testator ; but to me it seems rather immaterial, in which place the will is signed, provided it is shown to have the necessary authenticity.
The law, as established in the case of Stanley’s will, has become a rule of property; and stare decisis seems wisest to me. When our statute of wills was enacted, the statute of Charles II. had received a long, fixed and well known construction; and when we adopt an English statute, we take it with the construction, which it had received, — and this upon the ground, that such was the implied intention of the legislature. We think the case of Lemayne v. Stanley should be binding upon this court. To impugn or overthrow it would be to impugn or overthrow a rule of property, which has long been settled and acted upon. This should never be done, unless upon the most urgent necessity.
The case of Lemayne v. Stanley does not stand alone. In Knight v. Crockford, 1 Esp. N. P. Cas. 190, it was held, that where a writing began, “ I, A. B., agree,” &c., it was a sufficient signing, within the statute of frauds; and there are other cases to the like [267]*267effect, which, in principie, are like the case of Lemayne v. Stanley. See 1 Jarm. on Wills 70.
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The opinion of the court was delivered by
Bennett, J.
The only question saved in the county court, in relation to the admission or rejection of testimony, which has been insisted upon in this court, is the one in relation to the comparison of hands. In England it was long held, that a comparison of hand writing was not admissible; but I think, that rule has been modified by modern decisions; and at the present day it would seem their courts admit in evidence comparison of hands, but confine it to documents, which are proved to be genuine, and which are in evidence on the trial of the cause for other purposes.
We, however, in common with several of our sister states, have introduced a broader rule, and have permitted documents, which are proved to be genuine, and which are not otherwise in evidence, to go to the jury, for the purpose of comparison of hands. The genuineness of the document, however, which goes to the jury for the purpose of comparing the contested document with it, must either be admitted, or else established by clear, direct and positive testimony. Unless this is in the first instance done, the testimony should, for obvious reasons, be excluded.
I think it may safely be said, that for at least the last twenty five years our courts, at nisi prius, have admitted the same kind of testimony, as was admitted in the county court; but probably the decisions may not have been uniform. The first time I have known the question before the supreme court was in the case of Butler v. Dixon, decided in Chittenden County in 1832, (not reported.) Since that time I had supposed the question was at rest. In the case of Gifford v. Ford, 5 Vt. 535, comparison of hands was again admitted in evidence. It is true in that case the two signatures, which were compared one with the other, were otherwise put in evidence; but no importance was attached to that circumstance.
If this question were res integra with us, we should be satisfied with the ruling of the county court. See Hammond's Case, 2 [265]*265Greenl. R. 33. Lyon v. Lyman, 9 Conn. 55. Homer v. Hollis, 11 Mass. 309. Moody v. Rowell, 17 Pick. 490. Richardson v. Newcomb, 21 Pick. 315. The leading reason, assigned in England for the exclusion of this kind of testimony, viz., that their jurors could not read or write, does not exist with us; and if it existed, when the rule was established, it was a sufficient reason, why the law was so ruled in those early days. Our jurors are made up of men competent to compare hand writing; and, as matter of daily experience, we know, that comparison of hand writing is at once resorted to, when the mind wishes to satisfy itself in regard to the genuineness of a writing in dispute.
The remaining questions arise under the charge of the court;— and the first is, what will satisfy the statutory requirement of signing? Was the name of this testator in the beginning of the will a sufficient singing, to satisfy the statute? In the case of Lemayne v. Stanley, 3 Lev. 1, the will was in the hand writing of the testator, and such a signing was held'sufficient, within the statute of 29 Charles II., which required all wills of land to be signed. In that case, as in this, the will commenced, “ I, John Stanley, make,” &c. After that decision, the law was regarded as settled in England ; and the case of Lemayne v. Stanley has not only since been followed in that country, but also in our sister states, which have, by legislative enactment, adopted the statute of Charles II. The rule was so effectually established, that courts of justice, though repeatedly solicited, could not be induced to break in upon it. In England they have found, that a statute was necessary to change the law in this particular ; and in the reign of the present Queen one has been passed, requiring a will to be signed at its foot. The same has been done by some of our neighboring states.
It was said in England, and the same has been said in the argument of this cause, that the case of Lemayne v. Stanley was an evasion of the statute and opened a door for the perpetration of frauds, and was so nonsensical, that it ought not to be followed. If that decision had the effect to open a door for the commission of frauds, this certainly is a cogent reason, why it should not have been made in the first place, or since followed. But I am not aware, that such has been its effect. Where the whole will is in the hand writing of the testator, and is attested by three witnesses [266]*266in the presence of the testator, and published by him, as his last will, in their presence, it is difficult for me to see, how the fact, that the signing at the top of the will is held a sufficient signing, can open a door to fraud.
It must be shown, that the will possesses finality, before it can be operative; and to give it this quality, the testator must, at least, at the final execution of the will, adopt the writing of his name, at the beginning of the will, as a signing, and so intend it. I think in New York they have, or have had, a statute, which requires a will to be subscribed by tbe testator; and this, their courts have said, requires a will to be signed at the foot. This was doubtless according to the etymology of the word subscribed; though, if I mistake not, the supreme court of that state held, that the introduction of the word subscribe in their statute, instead of sign, should not change the construction from that, which had been given to the statute of Charles II.; but the court of errors thought otherwise. The etymology of the word “ sign ” does not necessarily require the signing to be at the bottom of the instrument; and it is much a matter of taste, as to the place of signing. If the question were res integra, we might think the bottom of the will was the place, where the statute intended it should be signed by the testator ; but to me it seems rather immaterial, in which place the will is signed, provided it is shown to have the necessary authenticity.
The law, as established in the case of Stanley’s will, has become a rule of property; and stare decisis seems wisest to me. When our statute of wills was enacted, the statute of Charles II. had received a long, fixed and well known construction; and when we adopt an English statute, we take it with the construction, which it had received, — and this upon the ground, that such was the implied intention of the legislature. We think the case of Lemayne v. Stanley should be binding upon this court. To impugn or overthrow it would be to impugn or overthrow a rule of property, which has long been settled and acted upon. This should never be done, unless upon the most urgent necessity.
The case of Lemayne v. Stanley does not stand alone. In Knight v. Crockford, 1 Esp. N. P. Cas. 190, it was held, that where a writing began, “ I, A. B., agree,” &c., it was a sufficient signing, within the statute of frauds; and there are other cases to the like [267]*267effect, which, in principie, are like the case of Lemayne v. Stanley. See 1 Jarm. on Wills 70.
The counsel for the appellant seem constrained to admit, in substance, that the signing of a will at the beginning may, if so designed, be a sufficient signing, within the statute of Charles II.; but they insist, that, in the case before us, the testator intended to sign this will at the foot, and that consequently the will was incomplete and wanting in finality, until it was so signed. I think it is hardly possible not to see, that, at the time the testator inserted his name at the beginning of the will, a farther signing of it was in contemplation, before it should have authenticity; and if the jury have not, by their verdict, found the will to be complete and finished at the time of its publication, it should not have been established. In the treatise, Modern Probate of Wills, page 154, the writer says, “Although the testator may have commenced his will thus, I, A. B., make, &c., with an intent of repeating his signature at the end of the will, yet if he subsequently acknowledge the instrument, as his will, to the attesting witnesses, without allusion to the signature, we presume, that the will was sufficiently signed.” In 1 Jarm. on Wills, p. 70, it is said, “ If the testator contemplated a farther signature, which he never made, the will must be regarded as unsigned ;” — and so, doubtless, are the authorities, as well as the reason of the thing. But he well remarks, that the reasoning seems only to apply, where the intention of repeating the signature remained unchanged to the last; for a name, originally written with such design, might afterwards be adopted by a testator, as the final signature ; and such, the writer says, “ would probably be the presumed intention, if the testator acknowledged the instrument, as his will, to the attesting witnesses, without alluding to any farther act of signing,”
We think this is a sound view of the subject. If the will, as the jury must have found in this case, was attested by three witnesses in the presence of the testator and in presence of one another, and published by the testator in their presence, as his last will and testament, it was to all intents and purposes an adoption of such a signature, as was then affixed to the will; and if the will then had such a signature, as could be held sufficient under the statute, nothing farther need be done. The will then becomes complete, and pos[268]*268sesses all the finality, which can be required. It is the same thing, in effect, as if the signature had been originally made animo signandi.
The case of Hubert v. Treherne, 42 E. C. L. 388, is regarded by the appellant’s counsel as a leading case, to show that this will was incomplete. The names of the parties to the agreement were stated in the beginning of the articles; and it concluded, “ as witness our hands,” but no signatures followed. The court, it is true, held, that this agreement was not signed, within the statute of frauds, for the reason, that the words “ as witness our hands” imported, that a farther signing was intended. I fully accord with this decision; but it should be remembered, that there was nothing in that case to show an adoption of the signatures, in the commencement of the articles, as the final signatures. Tindall, Ch. J., says, “ There was no sufficient original signing, and no subsequent recognition.” Coltman, J., remarks, “ that there was no sufficient authority to give out the copy, in behalf of the party to be charged with the agreement”; and Ersicine, J., says, “ he is not prepared to say, that, if the articles had been delivered by any proper authority, the signing would not have been sufficient.” Had the case shown a subsequent recognition .of the articles, I can have but little doubt, the decision would have been different.
The cases of Sanderson v. Jackson, 2 B. & P. 238, and Schneider v. Norris, 2 M. & S. 286, rest upon the ground of a subsequent recognition. Though the case of Johnson v. Dodgson, 2 M. & W. 659, is much relied upon by the appellant, yet it recognizes all the principles necessary to sustain the charge of the county court. Lord Abinger remarks, that the cases have decided, that, although the signing be in the beginning or middle of the instrument, yet it is as binding, as if it were at the foot, — the question being always open to the jury, whether the party, not having signed it regularly at the foot, meant to be bound by it, as it stood, or whether it was left so unsigned, because he refused to complete it. This principle we apply to the case before us. The jury have found, that the testator produced the will in question to the witnesses, and declared it to be his will, and requested them to witness it, as his will. This shows, that the testator did not then contemplate a farther signing of the will, and is, in effect, a finding by the jury, that the testator [269]*269adopted the instrument, as it was then signed, as his will; and if so, then the signing was sufficient, to satisfy the claims of the statute.
It might, perhaps, have been urged, with some propriety, that, though this will contains the usual ad testimonium clause, yet that, upon its face, it furnishes no evidence from that circumstance, that a farther signing was intended, át the time the testator drew up his will. This clause is written on the original will, it appears, so close to the seal, that there is no room for his signature opposite to the seal, or very near to it; but as the case was not put to the jury upon any such ground, it is not necessary to consider it. The case is right, going upon the ground, that the ad testimonium clause to this will furnished evidence, prima facie, that, at the time it was written, a farther signing was in the mind of the testator.
The case of Waller v. Waller, 1 Grattan (Virginia) 454, has been pressed upon us; but we cannot accede to the doctrine of that case. It is there said, that the finality of the testamentary intent must be ascertained from the face of the paper; and that, to constitute a sufficient signing, under their statute, it must appear from the frame of the instrument, and upon its face, that the signing was intended to give it authenticity as a signature, and that it was complete without any farther signature ; and that the paper itself must shoio all this, We think, that, unless there is something peculiar in the statute of that state, this case is unsound, and stands opposed to the whole current of decision under the statute of Charles II.
The case of Sarah Miles’ Will, 4 Dana 1, which the appellant has referred the court to, contains the sound doctrine on this subject. Her will was drawn by a neighbor, at her request, and under her dictation, and commenced thus, “ In the name of God, I, Sarah Miles,” &c., and concluded with the usual ad testimonium clause. It was read to and approved by her, but not then signed, or attested. After this she acknowledged the paper, as her will, in the presence of the witnesses, who attested it in her presence and at her request, — she being at that time unable to write. The principle adopted by the court was, that though her name in the beginning of her will was not intended, when written, to be her signature, yet, as it was so designed at the time of the publication, and there was then no intention on her part farther to sign her will, it was a sufficient signing within their statute, which was a copy of the English statute, This is in accordance with the English cases.
[270]*270It has been argued, that the writing of the testator’s name in the beginning of the will could not be an act recognizing the whole substance of the instrument, unless the whole factum was simultaneous with it, and was also in the contemplation of the testator, at the time he wrote his name. It may be true, that, when the signing the name in the beginning of the will is, in and of itself, to be taken as a signing of the will within the statute, without any subsequent recognition, it must appear, that the testator had the whole object of the instrument in prospect, when he wrote his name, and that the instrument must be completed by one simultaneous act; yet suppose it be so, — it cannot apply to a case like this. Here the signature did not become a sufficient signature, within the statute, until it was adopted as such, at the time of the publication of the will; and then the whole subject matter of the will was in the mind of the testator, and the will was completed by one simultaneous act.
Since the cases of Ellis v. Smith, 1 Ves. Sen. 11, and Carleton v. Griffin, 1 Burr. 549, the law has been settled, that the testator need not in fact sign the will in the presence of the attesting witnesses; and it is there held, if the will be so signed,that it can in any event satisfy the statute, and the testator declare it to be his will before three witnesses, that this is equivalent to signing it before them, and satisfies the statute.
This case has been very fully examined by the counsel, and every consideration has been urged, that could bear upon the question before us; and we may well admire the learning and ability, which have been displayed in the argument; yet we do not feel at liberty to depart from well established landmarks. The statute of Charles II. had received a settled construction, when our statute was passed ; and we must regard that construction as binding upon us. If we should change a rule of property, because we might think that the more obvious and popular meaning of the word sign might import a signing of the instrument only at its foot, we should, in my opinion, be far from duty.
The result is, the judgment of the county court is affirmed.