The portion of the will offered for probate on the fourth page of the sheet of paper was after the signature of O’Niel and after the attestation clause and signature of the witnesses, all of which were on the third page. In the body of the instrument preceding^, the signatures no reference is made to the part on the fourth page, that part was read to the testator, and the evidence shows he considered it a part of his will. It seems to be the concluding portion of the thirteenth' clause of the will written upon the fourth page, because there was not room enough on the third page before the printed clause appointing, executors and the attestation clause. The question presented is, whether a will so executed is valid under our statutes.
By our statute of wills (2 R. S., 63, § 40), a proper execution of a will requires that it shall be subscribed by the testator at the end of the will, and that each attesting witness shall sign his name as a witness at the end of the will. It is not so signed in this case by either the testator or the witnesses. The part following such signatures was intended by the testator to be a part of his will. It is not referred to in the body of the will.. The instrument seems more objectionable and far more dangerous than the one rejected in Sisters of Charity v. Kelly (67 N. Y., 409), which is quite conclusive of the case now under consideration. Judge Folger, says: “ To say that where the name is, there is the end of the will, is not to observe the statute. * * * It is to make a new law to say that where we find the name there is the end of the will.” The part which followed the signature of Kelly was of less importance in that case than the part which here follows the signatures. It would be very dangerous to recognize the doctrine contended for by the respondents. In the present case, the part after the signature may not be of great importance. But in the next case it may be of vast importance. If this fourth page may be incorporated in the will in like manner, the third page also could be so incorporated had the signatures been at the bottom of the second page. It would be very dangerous to allow such construction. Wills are quite frequently made with great secrecy. Y ery often their contents are unknown to any one except the testator and the person who prepared them for execution. The witnesses are called *134in to attest the formal requisites, they see nothing but the signature and the attestation clause which they sign, they know nothing of the contents or the structure of the instruments; after execution it is not uncommonly left with the attorney or person who wrote it for safe keeping. How easy, after testator’s death for such person to add to any clause after the signature in the same handwriting, the most important and vital provisions wholly at variance with the testator’s will and wish. Who could detect such addition ? How could the estate be protected against such dishonesty, except hy a strict adherence to the rule that the testator must sign the will at the end so as to make such an act impossible ? Such was doubtless the purpose of the statute. As applicable to* this case, I may quote further from the learned judge’s opinion (p. 416): “It is evident that the deceased considered the instrument to be one paper. We have no reason to say that he wished one part of it to be carried into effect if the whole was not. 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 act of 1 Y ictoria, as is said in Jackson v. Jackson (39 N. Y., 160), “differs but little in its provisions touching the executions of wills from our own.” Hnder that act the English courts have repeatedly refused probate to instruments like the present. (Willis v. Lowe, 5 Notes Cases, 428; Smee v. Bryer, 6 id., 20; 406; Ayres v. Ayres, 5 id., 375; Goods of Henry, 2 Robt. Eccl., 140; In re Milward, 1 Curteis, 912.) Other decisions of the English courts of a later date, tending to- sustain the respondent’s position, were made under the statute (15 and 16 Yictoria), which “ very much relaxed the rigor of the former act,” as Judge Folgeb says. Such cases are mot, therefore, of controlling weight with us by reason of the greater latitude given in the execution of wills.
Where a will is complete ;n itself, instructions or directions inserted after the signature may perhaps 'be rejected as forming no part of it. Such was the case of Conboy v. Jennings (1 Thom. & C., 622). So, too, a will by reference to a deed, a record or a map may so far make it a part of the will as to authorize its use for the purpose of making that certain, which otherwise might be doubtful. But such cases do not aid us where the extraneous matter *135is plainly intended to be a part of the instrument to be executed, (Sweetland v. Sweetland, 4 Sw. & Tr., 6; Hays v. Harden, 6 Penn., 409; approved, 15 id., 291 [Wikoff's appeal]; Glancey v. Glancey, 17 Ohio St., 134; Tonnele v. Hall, 4 N. Y., 140; McGuire v. Kerr, 2 Bradf., 244.)
But without further reference to authorities, we think we are following the decision in Sisters of Charity v. Kelly (supra), when we reverse the decree of the surrogate.
The decree of the surrogate is, therefore, reversed with costs to both parties out of estate, and probate is denied.
Landón, J:I concur. This will, as a whole, embraces writing following the signature, and therefore, in my opinion, cannot be said to be subscribed at the end. Argument based upon the suggestion of interlineation, or order of paying seems to be inapplicable to this will. To probate it, opens the door to an indefinite extension or modification of the matter directly preceding the signature.