I dissent from the conclusion reached by the majority of the court, and agree with what is said by Justices McFarland and G-aroutte.
I think, by a too close adherence to the mere letter of the statute, the court, in the main opinion, loses sight of the evident purpose intended to be subserved by the provision in question. When the witness Warren, intending in perfect good faith, as is conceded, to write his own name, wrote his own initials, but inadvertently added the name of the testator, instead of his own, it was, to all essential intents and purposes, a signing of his name within the spirit and intent of the statute, since it met every purpose designed to be subserved thereby. And this view, in my judgment, is sustained by the case of Meehan v. Rourke, 2 Bradf. 385, cited in the main opinion. There the name of the witness was written by another, and merely vised by the mark of the witness himself, although the requirement of the statute, like our own, was, that the witness should sign his name. But it is said by the surrogate, in addition to the language quoted in the majority opinion: “I think the requisition of the statute sufficiently complied with by the name of the witness being written at the end of the will, and the witness putting his mark thereto. This construction meets the design of the legislature in having the name of the witness, and, excluding wills attested only by marks, and does not shut *400out the attestation of wills by illiterate persons, when a penman can be found to record the transaction. I should come to any other conclusion with regret, as otherwise I should be compelled very frequently to reject wills attested by marksmen, the experience of this office showing the mode of execution to be very common. But, aside from the consequences, I do not think the rule contended for justified by the language of the statute, or consistent with the distinction made between a witness writing his name when he has subscribed the testator’s name, and being required, in all other cases only, to ‘ sign his name.’ ”
I think the record shows a sufficient compliance with the requirements of the statute, and that the deceased should not, by any such slight lapse as is here disclosed, be deprived of the right of testamentary disposition of his property.
Whatever may be our personal views as to the provisions of the law for the distribution of the property of intestates, whether they meet with our approval or otherwise, cannot affect our consideration here. The sole question is whether the' testator, in endeavoring to avail himself of the privilege of the law to so dispose of his estate as to meet his own desires, has so far complied with the statute as to make his purpose effectual; and this, I think, he has done, and that the judgment of the lower court should be reversed.
Rehearing denied.
McFarland, J., Garoutte, J., and Van Fleet, J., dissented from the order denying the petition for rehearing.