I am constrained to dissent from the opinion of Mr. Justice Cullen in this case, in the hope .that possibly the attention of the Court of Appeals may thereby be attracted to a renewed consideration of the principles announced by it in the cases cited by him.
While I recognize the propriety — indeed, the judicial necessity , — involved in the principle of sta/re decisis, cases sometimes arise where a judge may entertain such positive views as to justify him in declining to.follow a decision of even a court of last resort, where the court announcing it has overruled its own previous decision, as *403was done when the Court 'of Appeals, in the present instance, apparently overruled the case of Tonnele v. Hall (4 N. Y. 140).
My view of the duty of a judge is well expressed by eminent authority. Said Lord Justice Brett, dissenting in a similar case (Goods of Gunstan, 7 Prob. Div. 102): “ That is a point of law, and oil this point .we-must give our judgment. It is a point which must be decided upon the statute itself,vand even if twenty cases' decided that it would be a sufficient acknowledgment, if we were clearly of opinion that, according to the true construction of the statute, it would not do, we should not be bound by those cases. Where there have been several decisions or a series of decisions-upon any statute, I should dread to overrule those decisions or that series of decisions; but still we should be compelled so to do if we thought that those decisions were not in accordance with the statute.. But in this case we have no long line of decisions one way; there seem to be conflicting decisions, and we must accordingly exercise our own. judgment on the question independently almost, if not quite, of every former decision.”
It is to be noticed that one of the authorities which Judge Ruger cited and relied upon in The Matter of the Will of O'Neil (91 N. Y. 522) was the case of Hays v. Harden (6 Penn. St. 409). He excerpted the following language-to show the opinion of the Supreme Court of Pennsylvania on the subject: “ Signing at the end of the will was required to prevent evasion of , its provisions.” In Baker's Appeal (107 Penn. St. 381) the. court, referring to Hays v. Harden (supra), said: “ In that case there was no reference whatever in the paper purporting to' be the will of John Hays to the clause which followed; .there was no word or mark in the body of the will indicating any intention of the testator at the time of execution that •the appended, unattested clause should be drawn to and inserted at any designated place.”' The court declared that, although the signature of the testator was on the third page, and was followed by writing on the fourth page, it was signed at the end of the will, on the ground that the fourth page was, by referring words, drawn into its place before the end of the will and the signature of the testator. The court held that an extraneous, unsigned writing may, by force of a clearly expressed intention in the body of the will, constitute part of the will itself. The reference in the will must be complete *404and unambiguousit cannot be aided by extrinsic proof, and that in whatever: order of .pages or sheets a will may be written, it is to . bé read, according to the obvious sense and adaptation of its parts, . and that, it need not be signed at the end in point of space if so in point of fact.
In the case at bar there is no conflict of fact upon the point that the will was executed by the testator in the exact condition in whicli it was offered for probate, with pages marked 2d page and 3d page ;respectively. This whole paper then, was his will: .Courts are not astute to defeat testamentary intentions ; indeed, they are astute to discover methods of -supporting them. To hold that the will was .not actually signed at its end, when the page on which the signature appears is marked “ 3rd page,” and is preceded by another page "marked 2nd' page,” is to' defeat the will .of the testator. The high.est duty of courts is to -ascertain what is just, and many ¡cases may be found where, having ascertained this, the courts have bent their energies to the doing -of exact justice, even where a technical reading of a statute might prevent it.
. I cannot assent to a course which will defeat an instrument which is clearly the will of the testator, until there has been a- revision of ■ the point by our court of last resort.
I think the decree of the surrogate should be reversed. '