(dissenting). The alleged testator was of sound mind and memory at the time he made the instrument purporting to be his will, and in its execution the statutory formalities were observed in so far that he signed it and declared the instrument to be his last will and testament in the presence of witnesses, who at his request subscribed their names as such. The only question about its validity as a will arose from the fact that a portion of the provision was on a slip of paper attached to that upon which was the attestation clause subscribed by the testator. The draftsman used a printed blank, and filled the open space with provisions numbered 1 and 2; then added, “See annexed slip;” and a paper upon which were written by him clauses numbered 3 and 4 was there attached to the instrument by means of two metal staples. The only refer.ence to it was that before mentioned, and on the slip was nothing denoting its relation or reference to that to which it was so attached other than in the disposing clauses numbered 3 and 4. It appears by the evidence of the draftsman that the slip so annexed, as well as the other portions of the instrument, was read by the testator, and constituted a portion of the instrument declared by him as his last will and testament; and upon the evidence the conclusion is fairly required that the latter treated and intended it as a part of his will. The statute provides that every last will and testament “shall be subscribed by the testator at the end of the will.” 2 Rev. St. p. 63, § 40. The observance of this requirement is essential to the validity of a will. Sisters of Charity v. Kelly, 67 N. Y. 409; In re Hewitt, 91 N. Y. 261; In re O’Neil, Id. 516; In re Conway, 124 N. Y. 455, 26 N. E. 1028. It was intended by the person who drew the will and by the testator that the provisions upon the slip so attached should be treated as inserted in the place indicated by the reference to the “annexed slip,” and in that sense the will was subscribed by the testator at the end of it. But, as was held in the. cases above cited, the end of the will contemplated by the statute is that which actually and physically follows all the provisions of the instrument, and in that respect the intent of the legislature, and not that of the testator, controls. In the O’Neil Case it was evident that the added provision which followed the signature of the testator to the instrument was intended as the continuation of a provision in the body of it above the signature, but, for want of room in the printed blank there, it was continued upon the following page to completion. And in the Conway Case the provisions of the will were in like manner and for the same reason carried on to the page following that on which was the testimonium clause, subscribed by the testator, and at the place of departure were the words “Carried to back of will,” and upon the *803back was the word “Continued,” followed by the provisions there written. In both cases it was held that the instruments were not subscribed at the end, as required by the statute. In those cases, as in this one, it may be said that the makers of the instruments regarded those annexed provisions as inserted in the places so indicated, and thus treated their signatures as at the end of the wills. The place at which the slip was attached to the instrument in the present case does not seem in the legal aspect to be different in effect than if it had been affixed below that of the signature or on the following page. It is referred to as annexed. The statutory requirement is inflexible, and the reason for the construction thus given to it as applicable to the execution of wills is to prevent abuse or fraud in testamentary instruments, and alteration of them after their execution. As was said in the O’Neil Case by Chief Judge Euger:
“While the primary rule governing the interpretation of wills when admitted to probate recognizes and endeavors to carry out the intention of the testator, that rule cannot be invoked in the construction of the statute regulating their execution.”
Whether the alleged will in the case at bar was subscribed by the testator at the ejid of it is a question of statutory construction. The application of the doctrine of the Conway Case requires the conclusion that it was not so subscribed; and therefore the instrument was not duly executed as a will. The contention that it may be admitted to probate as to the provisions other than those contained in the annexed slip cannot be supported. Treating the instrument as not duly executed as a will, it cannot be given probate as such. Sisters of Charity v. Kelly, 67 N. Y. 409. A like question was considered in the O’Neil Case, 91 N. Y. 524. The decree of the surrogate’s court should be affirmed, with costs to the respondents, payable out of the estate of the decedent.