Cullen, J.:
The due execution and publication of the will, save in one respect, was proved beyond cpiestion. The will is written on a blank or printed form, consisting .of a single sheet of paper, folded in the middle so as to constitute four pages. At the top of the first page is found in print the caption -or introduction to a will, as follows:
[395]*395“ In the Name of God, Amen.
“ I, ISABELLA ANDREWS, of the city of Brooklyn, county of Kings and State of New York, being of sound' and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament as follows.” On the next page, or rather on the reverse side of the page already referred to — for whether it is or is not the next page is the very question involved in this controversy — there is printed a form of appointment of executors, with the names blank. Below this is the testimonium clause, also in print, with the date blank. After an intervening space for the signature of the testator there occurs a printed attestation clause for signature by the witnesses. In so far as there are blanks in the printed form, these are properly and appropriately filled in in writing. After the printed.introduction to the will already referred to, there follow on the first page, in writing, various dispository provisions which occupy substantially the whole of the page, but a narrow margin being left at the end. On what would ordinarily be termed the third page of the instrument, or the page to the right of that on which are' found the signature of the testator and those of the subscribing witnesses, the dispository provisions are continued, wholly in writing, to the end of that page. Above these provisions, also in writing, are found. the words, “ 2nd page.” At the top of the page, on which occurs the subscription by the testator and witnesses, are found in writing the words, “ 3rd page.” In other words, this will is written in the form frequently, used at the present time in the case of ordinary correspondence where a single sheet of note or letter paper, consisting of two leaves or four pages, is employed; that is to say, the writing is continued from the foot of the first page to the third page, and from the foot of the third page to the second page. The question is whether a will so written, and subscribed on the second page, is a compliance with the provisions of our statute which requires a will to be signed at its end. The learned surrogate held that it was not, and rejected the instrument, solely because the will is written in the- order of paging referred to. Entirely against our" first impressions, and solely under the stress of authority, we are, of opinion that the decision of the learned surrogate is correct.
f we were unaided by the light of judicial decisions, we should [396]*396be of opinion that the end of a will under the statute, was the point or position where the testator, or the draftsman on his behalf, last wrote any provisions of 'the will in the order of writing which the testator or his draftsman saw fit to adopt, to be determined by the context of the instrument itself. We should also be inclined to the belief that it was impracticable, if not impossible, to adopt any other rule without in different cases being led to inconsistent and incongruous results. Within the rule thus stated this will would be clearly good, as it was established by the evidence that the will was written in its entirety and subscribed by the testator i ii the same form in which it was found when offered for probate! Nor would the earlier authorities in this State condemn it as improperly signed. Substantially all that was held in Sisters of Charity v. Kelly (67 N. Y. 409) is, that the end of a will is not found until the last word of all its provisions has been reached. It did not prescribe any order or form in which the instrument must be written with reference to its position on the paper or substance upon which it was written. But subsequent cases have gone much farther, and have declared that the end of a will under the statute depends not only on the context of the instrument, but upon its physical position upon the paper or substance upon which it is written. In Matter of O'Neil (91 N. Y. 516) the will was drawn on a printed form which had the formal conclusion and attestation clause printed at the foot of the third page. The first three pages being insufficient to contain the written directions of the testator, these were continued on the. fourth page, the testator and witnesses signing at the foot of the third page. It was held that the will was not signed at the end. In that case Judge Ruger dwells on the fact that there was no mark or asterisk on the third page to connect the writing on the fourth page with it. It would be possible to distinguish the present case from the one cited, in'the fact that here the pages are numbered 2 and 3. The next case was Matter of Conway (124 N. Y. 455). There also the will was drawn on a printed form, all of which was found on the face or one side of a half sheet of paper, the introduction being at the head of the page, the testimonium and attestation clauses at the foot. The space intervening between the caption and the conclusion of the will was filled in in writing, the concluding word's of which were, “Carried to back of will.” On the [397]*397other side of the sheet there was written, “Continued.” Then followed further testamentary directions, at the conclusion of which was written, “Signature on face of the will.” It was held that the will was not signed at the end, and the instrument was rejected. This decision was made by a divided court, in the Second Division of the Court of Appeals. Subsequently a similar question arose in The Matter of Whitney (153 N. Y. 259), and the decision in the Conway case was unanimously approved. This also was the case of a printed blank covering one page, and again the space between the formal introduction and formal conclusion of the will was inadequate for the purpose of expressing th§ testamentary dispositions. At the end of the written part and before the conclusion of the will, (here appeared the words, “See annexed sheet.” On another piece of paper, fastened to the will, were written two other clauses. It was held that the will was not signed at the end. Matter of Blair (84 Hun, 581; affd. on opinion below, 152 N. Y. 645) enunciates practically the same rule. We do not see how it is possible to distinguish the present case in principle from the authorities cited. True, it has .been asserted by lecturers and text writers that the statutory requirement that a will must be signed at its end was not enacted to guard against the incorporation into wills of spurious testamentary dispositions, but to prevent, especially in the case of holographic wills, inchoate instruments or drafts, in which the testator had written his name in one place or another, being given effect to as if executed testaments. Mr. Harden, of Columbia College, in a. recent article on this subject, contends that the requirement of the Revised Statutes that a will shall be signed at its end was enacted because of the Leake Case (Watts v. Public Administrator) (4 Wend. 168). It is not, however, always safe to attribute legislative action solely to a single event that happened at the time.
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Cullen, J.:
The due execution and publication of the will, save in one respect, was proved beyond cpiestion. The will is written on a blank or printed form, consisting .of a single sheet of paper, folded in the middle so as to constitute four pages. At the top of the first page is found in print the caption -or introduction to a will, as follows:
[395]*395“ In the Name of God, Amen.
“ I, ISABELLA ANDREWS, of the city of Brooklyn, county of Kings and State of New York, being of sound' and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament as follows.” On the next page, or rather on the reverse side of the page already referred to — for whether it is or is not the next page is the very question involved in this controversy — there is printed a form of appointment of executors, with the names blank. Below this is the testimonium clause, also in print, with the date blank. After an intervening space for the signature of the testator there occurs a printed attestation clause for signature by the witnesses. In so far as there are blanks in the printed form, these are properly and appropriately filled in in writing. After the printed.introduction to the will already referred to, there follow on the first page, in writing, various dispository provisions which occupy substantially the whole of the page, but a narrow margin being left at the end. On what would ordinarily be termed the third page of the instrument, or the page to the right of that on which are' found the signature of the testator and those of the subscribing witnesses, the dispository provisions are continued, wholly in writing, to the end of that page. Above these provisions, also in writing, are found. the words, “ 2nd page.” At the top of the page, on which occurs the subscription by the testator and witnesses, are found in writing the words, “ 3rd page.” In other words, this will is written in the form frequently, used at the present time in the case of ordinary correspondence where a single sheet of note or letter paper, consisting of two leaves or four pages, is employed; that is to say, the writing is continued from the foot of the first page to the third page, and from the foot of the third page to the second page. The question is whether a will so written, and subscribed on the second page, is a compliance with the provisions of our statute which requires a will to be signed at its end. The learned surrogate held that it was not, and rejected the instrument, solely because the will is written in the- order of paging referred to. Entirely against our" first impressions, and solely under the stress of authority, we are, of opinion that the decision of the learned surrogate is correct.
f we were unaided by the light of judicial decisions, we should [396]*396be of opinion that the end of a will under the statute, was the point or position where the testator, or the draftsman on his behalf, last wrote any provisions of 'the will in the order of writing which the testator or his draftsman saw fit to adopt, to be determined by the context of the instrument itself. We should also be inclined to the belief that it was impracticable, if not impossible, to adopt any other rule without in different cases being led to inconsistent and incongruous results. Within the rule thus stated this will would be clearly good, as it was established by the evidence that the will was written in its entirety and subscribed by the testator i ii the same form in which it was found when offered for probate! Nor would the earlier authorities in this State condemn it as improperly signed. Substantially all that was held in Sisters of Charity v. Kelly (67 N. Y. 409) is, that the end of a will is not found until the last word of all its provisions has been reached. It did not prescribe any order or form in which the instrument must be written with reference to its position on the paper or substance upon which it was written. But subsequent cases have gone much farther, and have declared that the end of a will under the statute depends not only on the context of the instrument, but upon its physical position upon the paper or substance upon which it is written. In Matter of O'Neil (91 N. Y. 516) the will was drawn on a printed form which had the formal conclusion and attestation clause printed at the foot of the third page. The first three pages being insufficient to contain the written directions of the testator, these were continued on the. fourth page, the testator and witnesses signing at the foot of the third page. It was held that the will was not signed at the end. In that case Judge Ruger dwells on the fact that there was no mark or asterisk on the third page to connect the writing on the fourth page with it. It would be possible to distinguish the present case from the one cited, in'the fact that here the pages are numbered 2 and 3. The next case was Matter of Conway (124 N. Y. 455). There also the will was drawn on a printed form, all of which was found on the face or one side of a half sheet of paper, the introduction being at the head of the page, the testimonium and attestation clauses at the foot. The space intervening between the caption and the conclusion of the will was filled in in writing, the concluding word's of which were, “Carried to back of will.” On the [397]*397other side of the sheet there was written, “Continued.” Then followed further testamentary directions, at the conclusion of which was written, “Signature on face of the will.” It was held that the will was not signed at the end, and the instrument was rejected. This decision was made by a divided court, in the Second Division of the Court of Appeals. Subsequently a similar question arose in The Matter of Whitney (153 N. Y. 259), and the decision in the Conway case was unanimously approved. This also was the case of a printed blank covering one page, and again the space between the formal introduction and formal conclusion of the will was inadequate for the purpose of expressing th§ testamentary dispositions. At the end of the written part and before the conclusion of the will, (here appeared the words, “See annexed sheet.” On another piece of paper, fastened to the will, were written two other clauses. It was held that the will was not signed at the end. Matter of Blair (84 Hun, 581; affd. on opinion below, 152 N. Y. 645) enunciates practically the same rule. We do not see how it is possible to distinguish the present case in principle from the authorities cited. True, it has .been asserted by lecturers and text writers that the statutory requirement that a will must be signed at its end was not enacted to guard against the incorporation into wills of spurious testamentary dispositions, but to prevent, especially in the case of holographic wills, inchoate instruments or drafts, in which the testator had written his name in one place or another, being given effect to as if executed testaments. Mr. Harden, of Columbia College, in a. recent article on this subject, contends that the requirement of the Revised Statutes that a will shall be signed at its end was enacted because of the Leake Case (Watts v. Public Administrator) (4 Wend. 168). It is not, however, always safe to attribute legislative action solely to a single event that happened at the time. The Court of Appeals in the decisions referred to, through Judges Ruger, Parker and Bartlett, has asserted that the object of the statute is to guard against the incorporation of spurious provisions into wills. These decisions proceed on this ground ; and in determining the application of the statutory requirement to a particular case, we must regard that as the object of the statute which has been declared by the Court of Appeals to be such. If one construction of the statute will accomplish that object and another not we must adopt the former. [398]*398Governed by these considerations it seems to us impossible to uphold .the will before us. The only things appearing on the face of the instrument to connect the so called second page (ordinarily termed the third page) with the rest of the will are the writings at the head of the two pages, “2nd page ” and “3rd page.” These do not establish the connection or order of writing as conclusively as appeared in the O'Neil case or the Conway case. In the earlier case the writing on the third page terminated in a broken sentence, showing clearly that something was to follow. Here the first page is complete; and were the second leaf torn off or separated fro.m the first, the first leaf would present the appearance óf a completed instrument, with nothing to indicate that any part of it was absent. In the Conway case on the face of the will was written, “Carried to back of will.” The writing on the reverse page commenced, “Continued,” and concluded, “Signature oh face of the will.” If it were possible by any written statement to have incorporated into the will the pro visions written on the back, and if it were .possible by such writing to prevent the danger from spurious provisions being subsequently placed in the will, it would seem that these statements would have been efficacious for the purpose. But Judge Parker points out that they were insufficient; that the words “carried to back of will ” might have been interpolated after the will was written, and that they afford no safeguard against fraud. Surely the words “2nd page ” and “3rd page ” afford much less security against fraud than the writing in the Conway case. In the present case it is difficult to see why the whole fourth page might not, subsequent to the execution of the will, be covered with testamentary dispositions, and the page headed 3½ or *3.
It is argued that we are in effect holding that, as a matter of law, the reverse side of the leaf first written upon constitutes the second or next page, while it is a matter of common qn-actice in - writing-letters to proceed from' the foot of the first page or front of the first leaf to the same side of a new leaf, and from that to the reverse side of the leaf first written upon, and that we are prescribing the order in which the writing of a will shall proceed where the statute has made no such requirement. We appreciate the force of this criticism, nor do we wholly deny that it is apposite, though the rule we declare does not go to the extent imagined. We do not hold that [399]*399■from the first page a will must be continued on the second page Alone, 01* that the top of the second page must be in a position corresponding to that of the first page. It would no doubt be proper to treat the second and third pages as a single page, carrying the written lines across both-pages. But, as we understand the effect of the decisions cited, the rule to be gathered from those cases is that whenever a will is written on a single piece of paper the writing must be in such an order as will prevent an interpolation of spurious provisions between the beginning of the will and the signatures of the testator and subscribing witnesses. If the testator in this case was at liberty to adopt the third page as her second, we " know of no reason or rule which should have prevented the testator 'in the O’neil or Conway case from going to another page before he had concluded the page on which he was writing, and then returning to the original page.
It is said that if the second leaf be severed from the first, and Attached to the foot of the first page, then the will will appear well executed under any of the authorities. We concede this claim; but the answer to it is that in the instrument' as offered the connection between the two leaves is. at the side and' not at the foot. It is further said that, granting the sufficiency of our answer to the appellant’s argument in this respect, it is unreasonable to make the validity of a will depend on the point of connection between the several pages of the instrument. If this is so it is but a criticism on the rule that the signature must be found at “ the physical end of the will; ” but that rule is the law of this State. Many instances have been suggested to us on the argument by counsel where it would seem impracticable, if not impossible, to apply the rule. It is said that no law requires a will to be written on a single sheet of paper ; that it may be written on many detached or separate pieces; that no statute provides how such pieces shall be attached or how separate sheets shall be authenticated. We are asked if, in such a case, after the execution of a will the sheets or pieces of paper should be folded together in the wrong order, and the sheet last in fact and bearing the signatures of the testator and witnesses is by mistake found out of place, whether the will is to be rejected. It is not necessary for us to be able to answer this inquiry. Many cases have occurred to us in which it would seem difficult to apply the “ physical end of the [400]*400will ” rule, We have frankly said that these difficulties seem to. us so great that, apart from authority, we should not have been inclined to adopt such a rule; but the rule is the law of this State, and we must apply it to cases that fairly fall within its limits, though there may be imagined others to which it could not apply.
Finally, the appellants claim that the so designated “2nd page” may be upheld under the rule “that any written testamentary document in existence, at the execution of a will may by reference be incorporated into and become a part of a will provided the reference in the will is distinct, and clearly identifies, or renders capable of identification, by the aid of extrinsic proof, the document of* which reference is made.” (Dissenting opinion of Brown, J., in Matter of Conway, supra.) The rule asserted by Judge. Brown is unquestionably the law in England, and is the law in most if not all the States, other than this, where the common law prevails. It is so broad in its scope that a legally executed codicil referring to a previous will, which has been defectively executed or attested, will by incorporation, render the earlier will a valid testamentary disposition. (Croker v. Hertford, 4 Moore P. C. Cas. 339; Alien v. Maddock, 11 id. 427.) The doctrine that the publication of a codicil is a publication of the will to which it is a codicil, is but a corollary to the rule that testamentary dispositions in existing documents may be incorporated into the will. There is authority, too, in this State- for the rule. Caulfield v. Sullivan (85 N. Y. 153) would seem to have decided that proof of a codicil referring to a will was sufficient proof of the will itself. This in principle is exactly the doctrine of incorporation of extraneous documents; for if the publication of the original will was not proved, it was for the purposes of that case the same as if it had not been executed as a will at all. But. the recent cases in this State to which we have referred greatly limited if not entirely abrogated the rule for which Judge Brown contended in the Conway case. In fact, the rule seems entirely inconsistent with the other rule, that subscription must be made at the physical end of the will. If-the references on the face of the wills were not sufficient in the Conway and Whitney cases to incorporate into those instruments the testamentary dispositions; [401]*401written on the back of the will in one case and on papers physically attached to the will in the other, it seems to us idle to argue that this so-called “2nd” page of the will before us can be incorporated into that instrument. We think that, under the law now prevailing in this State, extraneous documents can be referred to only to ascertain! matters of description, and not for dispository provisions (Matter of O'Neil, supra); and that a codicil can validate an earlier will only where the will itself was properly executed in accordance with law, and for some other reason was or became inoperative or invalid. (Brown v. Clark, 77 N. Y. 369. See comments on the case in the opinion of Parker, J., in Matter of Conway.)
With every disposition to uphold this will, we do not see how it can be done by this court. If limitations or qualifications are to be máde on the cases on which this opinion is based, those limitations jnust proceed from the Court of Appeals.
If the decision now made, by us should be upheld by that court, it will follow that at least six wills (including one in the fourth department, 42 App. Div. 593), undoubtedly containing the true testamentary dispositions of testators and executed by those testators with the intent to conform with the statutes of this State, will have been held void because of the interpretation placed on the statutory requirements for safeguards against fraud. The rule i which our decision enforces in this case operates only to prevent fraudulent additions to testamentary instruments, and not as a security against wills forged in their entirety. We think the decisions of the courts of this State will be examined in vain in the attempt to find six cases of alleged fraudulent additions to wills, or even half that number; and it must be conceded that as to this supposed danger the remedy has proved in practice far worse than the disease. In England a statute similar to our own, and construed as strictly by the courts of that country as our .statute has been construed by our courts, was passed in 1837 (1 Vic. ch. 26.) The evils resulting from it proved so great that in 1853 (15 & 16 Vic. ch. 24) it was modified. (1 Jarm. Wills [5th Am. ed.], 106.)
The judgment appealed from should be affirmed, with costs to all parties to be paid out of the estate.
[402]*402Bartlett, J., concurred; Goodrich, P. J., and Woodward, J., dissented.
Hatch, J.:
If the question presented in this case were an original one, I should have no hesitancy in giving ready concurrence to the reasoning of, Mr. Justice Woodward and to the conclusion to which such reasoning logically leads. I should regard the decisions in Sisters of Charity v. Kelly (67 N. Y. 409) and Matter of O’Neil (91 id. 516) as furnishing sound authority in support of such a result. But the subsequent decisions found in Matter of Conway (124 N. Y. 455) and Matter of Whitney (153 id. 259), as they are interpreted by Mr. Justice Cullen in his- opinion, .from which interpretation I see no logical escape, precludes such result, and in obedience to such authority, as the question involved was fully considered and deliberately decided, I am required to yield the convictions which I hold. If it is a difference of opinion, we should bow in deference to superior authority; if we are mistaken in our interpretation, the Court of Appeals can set us right; if the rule has been extended beyond the point where the will of a testator is to be sacrificed in order that a technicality, not, as it seems to me, necessary for properly safeguarding the testament, may be observed, the court above will doubtless appreciate and correct it. At the present moment the law as it stands, as I understand it, requires a concurrence in the opinion of Mr. Justice Cullen.
Bartlett, J., concurred.