; I am unable to concur in the conclusion reached by Mr. Justice Cullen that the judgment of the court beloyr should be affirmed. Mirst, because I do think the objection raised comes within the reason of the law; second, because I do not find in the' authorities cited any necessity for going to the-length of defeating the intern tion of the testator.
The objection raised is that the will is not executed in conformity with the provisions of the Revised Statutes (2 R. S. 63, § 40), in that it is not signed by the testatrix and the witnesses at the “ end of the will; ” and it will be conceded that if it is not so signed, it, is not within the provisions of the law, and is, therefore, of no effect.
At common law, if a person wrote his name in the body of -a will or -contract with intent to execute it in that ' manner, the' -signature so written was ,as valid as "though subscribed at the end of the *405instrument. (Merritt v. Clason, 12 Johns. 102.) This opened the way to fraud, by permitting any number of disposing clauses to be added after the execution of the will, and to prevent this the Legislature enacted that the. will “ shall be subscribéd by the testator at the end of the will.” (2 R. S. 63, § 40.) The surrogate before whom the will in question was offered for probate finds as a fact that “ the will was prepared on a printed blank consisting of a double sheet, the two leaves of which were joined from top to bottom on the left side. The formal opening part of the will was printed on the top of the first page of the paper, leaving the rest of the page blank. The closing part containing the clause for the appointment of the executor, and what follows, including the attestation clause, was printed on the top of the second page of the first leaf, leaving the rest of that page and the first page of the other leaf blank. The draftsman filled the blank on the first page and then turned to the first page of the second leaf and filled that, marking it at the top ‘2nd page.’ He then turned to the page containing the closing part of the will, as above stated, marked it at the top ‘ 3rd page,’ and completed the instrument, save as to its execution, by filling the blanks at the top of that page, except the blank for the date which was left to be filled at the time of execution. The instrument was left in the possession of the testatrix, as above stated [for a period of about three months], in the condition above described ; at the time of its execution, the daté was written in previous to the signing by the testatrix.”
The testatrix signed this instrument directly below and immediately at the end of the will as thus prepared, and her signature is followed by that of the witnesses. The only question presented, therefore, is whether it is necessary, as a matter of law, that the pages of a will should be consecutive. If the draftsman had, after completing the first page, turned to the first side of the second sheet and filled that, and had then turned over the page and completed it on the fourth page, there would have been no doubt that the signatures at the end of the will complied with the provisions of the statute. Yet this would have left the actual physical, consecutive second page blank, and open to all of the opportunities for fraud which the statute aimed to prevent. If the pages had been numbered there would have been no more propriety in calling the last *406page the third page than there was in putting the matter on the back of the first page and calling that the third page; it would simply be an arbitrary designation of the page, and we are unable to find any authority which denies the right of a testator to make such a designation. In the case as it is actually presented by the findings of fact made by the surrogate, the draftsman filled up the first page. Finding the printed matter on the second side of that page, and having additional provisions to make, he passed over to the second leaf and. numbered that page two. When he had filled this page it was necessary to continue the writing, and he was confronted with the question of whether he should pass over, calling the fourth page the third page, or whether he should avail himself of the printed matter upon the second side of the first page and call that the third page. He chose the latter course, and the end of the will, the third page, is found on the reverse side of the first page, where it is properly signed, both by the testatrix and by her witnesses. The pages are not indicated by mere abstract numbers, the draftsman has taken the pains to indicate clearly the order in which the will is to be read by heading the pages “2nd page.” and “3rd page,” and I am unable to understand by what process of reasoning it can be held that the signatures appearing on the third and last page of this will are not at the physical end of the will. There is nothing following these signatures; for surely it cannot be held that the “2nd page” follows the page which it is conceded was marked “3rd page” at the time the will was executed. This' “3rd page” is blank for' more than one-half of its space after the signatures. If any disposing clauses followed upon this page, it would, unquestionably destroy the will; but there are no such clauses, the space being entirely blank,'while at'the very top of the next page we are told by the language of the will, all written at the same time, that'it is the “2nd page,” and it is so a part of the same paper that there is no mistaking its relation to the will now under consideration or the position which it occupies in the 'formulation of that will. The court, in The Matter of the Will of O’Neil (91 N. Y. 516), clearly indicates that where this condition exists the will is not. invalidated by the mere physical position of the signatures. In that instance the formal commencement of the will was on the first page, the second and .third pages *407being blank down to the bottom, of the third page, which was given up to the formal printed closing. In drawing the will the draftsman filled in the space down to the attestation clause, and when he had reached that point he was in the middle of the 13th paragraph. This was continued on the fourth page, the testator and his witnesses signing at the bottom of the third page. . The court, in commenting on this state of facts, say: “The portion of the thirteenth paragraph immediately preceding the printed termination was manifestly incomplete, and the lines written on the fourth page were obviously a continuation of this broken paragraph. The two portions were not, however, sought to be connected by 'means of a reference, asterisk, words or. symbol, indicating .the relation to each other.” There were material provisions following the signatures without being “connected by means of a reference, asterisk, words or symbol, indicating the relation to each other,” and the court held that the testator had not complied with the provisions of the statute by signing the will at its end. This is obviously a very different case from that presented in the matter now before this court where the relations of all the parts are clearly and accurately indicated by the distinct paging. The will would not be complete without the last sheet, because there could be no justification for admitting to probate a will with only two pages when the last page was distinctly stated to be the “3rd page,” while, if the second sheet is retained, its relation to the remainder of the will is distinctly indicated by the statement at the top that it is the “2nd page.” All opportunity for fraud is as effectually guarded against as it is possible in a written instrument. The “2nd page” is written full and the “3rd page” ends with the signatures of the testatrix and her witnesses. In The Matter of O’Neil (supra) the signatures are in the middle of a paragraph, and that paragraph, without anything to indicate that it belonged above the signatures or that that was its relation to the matter on the third page of the will, was continued on the fourth page. Obviously, a 14th paragraph could have been written after it with equal propriety or a 15th, and the signature was not, therefore, at the end of the will in any sense whatever, although it was in evidence that the signatures were made after the 13th clause was finished. “There can be no answer to the proposition,” say the court in The Matter of O’Neil, “that to uphold this will is to defeat *408the 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,” etc. That, is not the case in the will now before us, and it is not, therefore, within the reason of the law or the authority of The Matter of O'Neil.
In Sisters of Charity v. Kelly (67 N. Y. 409) the only signature ¡Droved to be that of the testator was found in the attestation clause, following the signatures, of the witnesses, and contained in the body of the paragraph. There was no signature at the end of the will, merely a declaration, “ Subscribed by John Kelly, the testator named in the foregoing will,” etc., the name “John Kelly” being written by the testator Kelly. In commenting on this failure to sign at the end of the will, the court say: “ 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.” The court then say, and it is important to bear this in mind, that “ while its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction.” . Within the rule in this case there is no reason for saying that a will "consisting of three written pages, the last two pages being distinctly numbered as the “ 2nd page ” and3rd page,” is not signed at the end when it is subscribed at the finish of the written matter upon the “ 3rd page.” To illustrate, suppose that the will had been written on three, separate sheets of paper, the signatures appearing upon the numbered “ 3rd page;” that these had been gathered up and fastened together at the top with a seal, and when the instrument was offered for probate it should appear that the third page had been placed immediately after the first page, and the second page was last. Woiild any one attempt to say that the. will was not signed at the end? Yet, assuming the pages to be numbered “ 2nd page ” and “ 3d page,” as in the will now under consideration, would there not be just as many opportunities for fraud by inserting'provisions under fractional page numbers? . .
In Matter of Conway (124 N. Y. 455) the paper offered as a will consisted of a single sheet about the size of a legal cap page. The formal opening and closing clauses of the will were upon the first page. .In drawing the will the scrivener filled up the blank space *409between the opening of the will and the testimonium clause. At the end of the third devise in parenthesis and underlined were the words, “ carried to back of will.” Upon the back of the will in parenthesis and underlined was the word “ continued.” Then followed bequests of personal property, filling the entire back of the will, and at the end was found the words, “ signature on face of the will.” The signatures were placed upon the first page in the blanks provided in the printed form, and obviously were not at the end of the will. In this case the court, after calling attention to the fact that the object of the statute is “ to surround testamentary dispositions with such safeguards as will protect them from alteration,” say: “ It is likewise true that in this will, as well as O’Neil’s, the actual physical termination of the will is not at the place where the testator subscribed his name.” It then calls attention to the fact that there is no way of protecting the testator as contemplated by the statute if the will may be indefinitely extended by simply writing upon the face of a will, before the signature, “ carried to back of will,” and referring at the end of the back page to the signature on the front. “ If,” say the court, “ by preceding the testimonium clause with the words ‘ carried back of will,’ all that is written thereon may be made a part of' the will, what is to prevent making another sheet a part of it also by writing on the bottom of that page continued on sheet one, and so en until any number of sheets of paper with testamentary provisions thereon be made a part of the instrument which is signed on the first page?” This case, to my mind, affords no authority for holding that the will now before us is not signed at the end, because the pages are not in consecutive .order, “ The instrument offered,” say the court in Sisters of Charity v. Kelly (supra), “ 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.” If we scan this will we shall find that it is an instrument of three pages; that each of the pages, after the first, is distinctly indicated, and that the “ end of it as a completed whole ” is on the page indicated as “ 3rd page.” At this point the signatures appear, and, in my opinion, the requirement of the statute has been fully met.
In Matter of Whitney (153 N. Y. 259), as in The Matter of Conway (supra), the will is drawn upon a printed blank, covering only *410one page, and the testator and subscribing witnesses signed at the foot thereof. The subdivisions of the will marked respectively “ first ” and “ second ” fill the entire blank space in the printed form, and at the end of the second subdivision are the words “ see annexed sheet.” On a separate slip of paper are written two additional subdivisions, marked respectively “ third ” and “ fourth,” and this is attached to the face of the will, immediately over the first and second subdivisions, by metal staples, so that the slip annexed has to be raised up or turned back, in order to read the first two clauses. The court calls attention to the obvious fact that the signatures are not at the end of the will, and that the slip of paper annexed- by means of metal clasps might be removed and another paper substituted, without running any risk of detection, and that “ the only reference to the annexed slip is in the will, and the paper attached contains no word or sign to connect it with the main instrument.” Clearly the decision - in this case cannot be controlling in the case at bar, where the “ 2nd page ” is an integral part of the paper on which the will is written, and where its proper relation to the whole instrument is distinctly indicated by the definite paging.
The Legislature has not attempted to prescribe rules which should make fraud impossible; it has simply sought to lay down broad general rules which shall reduce the probabilities of .fraud to a minimum, and among these it is provided that the testator’s signature must be at the end of a will, and we are not called upon to give construction to this rule beyond the point which it is reasonable to suppose the Legislature intended. It is .true, of coutse,that by means of fractional paging the will before us might be added to, but it is equally true that if the will had been finished ón the: fourth page of the sheet the second page might have been called one and one-half, opening an equal opportunity for fraud. It is likewise true that the spaces between paragraphs in a will might be so wide as to admit of new clauses or new paragraphs, and there are almost endless ways by which forgery may be committed, but the Legislature', aside from its criminal statutes, has not sought to deal with. these, and there is no reason why this court should extend the'rule beyond the policy of the law and defeat the purposes of tbe testatrix in the case at bar simply. because she has not followed the consecutive order of paging. The opportunities for fraud are no greater in this *411will than in any other; the signatures are immediately following the last words of the will, and, in my opinion, there is no authority either in the statutes or in any of the ad judicated cases, which calls for the affirmance of the judgment of the court below.
I am of opinion that the judgment should be reversed, and that the will should be admitted to probate.
Decree of Surrogate’s Court affirmed, with costs.