I concur with Mr. Justice Ruhsey. The result of the judgment appealed from is that the court has made a will for the testatrix by which all of her property is disposed of after her death for the benefit of certain persons, although a will making such a disposition of her property was never signed or executed as required by statute ; and this result is effected because it is alleged that the deceased made an agreement many years ago to make a will dividing her property among certain specified persons, although none of the legatees and devisees who seek to enforce this alleged oral agreement were parties to the agreement or paid any of the consideration lipón which it was based. Such á result would, it seems to me, violate the express provisions of the statute which prescribe the formalities necessary to the execution of a valid will of real or personal property and open the door to the fraud which it was the special object of the statute prescribing such formalities to prevent. By the statute in relation to the execution of wills (2 R. S. 03, § 40) it is provided : “ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator in the presence of each of ■the attesting witnesses, or shall be acknowledged by him' to have been so made to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign, his name as a witness, at the end of the will, at the request of the testator.” And in this State it has been uniformly held that these requirements must be strictly complied with before a will can be admitted to probate or be effectual to dispose of the property of a testator. It is unnecessary to cite authorities to sustain this proposition, but the last expression of the Court of Appeals on the subject is Matter of Andrews (162 N. Y. 1). It is there said: “ It has long been the settled policy of this state to require certain formalities to be observed in the execution of wills; these provisions are exceedingly simple and calculated to prevent frauds and uncertainty in the testamentary dispositions of property.” It was there determined that *161the intention of the testator is not to be considered when construing this statute, but that of the Legislature; that the question is not what did the testator intend to do, but what he did in the light, of the statute; and in that case, although it was plainly established that the testator intended to make a last will and testament and reduced his intention to writing and signed it in the presence of two witnesses, who signed the same at his request, it was held that because the testator’s name was not subscribed at the end of the will it could not be admitted to probate as the testator’s will. The statute thus requiring the observance of these formalities, and the court having by a uniform course of decisions established the principle that those formalities must be strictly followed, it would certainly seem a necessary conclusion that a mere verbal agreement to make a will, no matter what the consideration, could no more be enforced than could an oral will.
In this case, the testatrix never made a will in pursuance of this alleged oral agreement. Ho such will was ever executed by her with or without the formalities required by the statute; and no will, therefore, exists which was valid under the statute, or which could be admitted to probate to efEect such a disposition of the testatrix’s property. In the absence of such a formally executed will, no court has the power to make a will for the testatrix and thus dispose of her property after her death as though she had made a will as prescribed by the statute. In all of the cases which have enforced these mutual agreements to make a will of which I have any knowledge, a will executed with the formalities required by law had been actually executed in pursuance of the agreement, and it was that will that the judgment enforced as against a will subsequently made and which, but for the agreement, would have revoked the prior will made in pursuance of the agreement. This consideration seems to me to bar the' enforcement by the court of such an oral executory agreement as was alleged in this case where no will was actually executed in pursuance of its provisions.
I concur, therefore, in the reversal of this judgment.
Yah Brunt, P. J., concurred; Hatch, and O’Brien, JJ., dissented.