(dissenting).
I think that the signing of his will by a testator must, under our statute, be the signing of his written will. The statute calls it the “signature” of the testator, and whether it be his sign, nup'k, signum or sign-manual, such testamentary act must take place in ihe order named in the statute, and be after the writing of the will. It is this “signature” that the testator may acknowledge to the witnesses in ease it was not made in their presence; such acknowledgment is therefore a substitute in the alternative for the visual act of the witnessing of the making of the signature. If the witnesses have witnessed the signing by the testator an acknowledgment is not authorized by the statute, and, if it were, would not advance the transaction beyond what such witnesses had in fact witnessed. In fine, the acknowledgment merely identifies the testator’s signature as of the time when, had the witnesses seen him make it, they would have witnessed the act that is thus acknowledged solely because they did not so witness it. Whether witnessed or acknowledged the testamentary act in question remains identically the same. The present case, *344therefore, by force of the testator’s acknowledgment of his signature, stands precisely as if the witnesses had seen him make it, in which case they would have seen him sign his name to a paper that was not his will. Such a signing, whether it be witnessed or acknowledged, is not the statutory signing by the testator of his written will; for a will is not written until it is completed any more than it is before it is commenced. A will thus executed in the inverse order of the statute, i. e., first signed, then reduced to writing, and such previous signature then acknowledged, is no more a compliance with the statute than if the witnesses had witnessed the testator write his name on a piece of blank paper on which over his name his will was afterwards written. In fine, if a testator has not in fact signed his written will no acknowledgment he can make can alter that fact or supply that deficiency, for it is only his signature he can acknowledge—not his will; and in the last analysis the fundamental error is that of construing the statute as if it authorized the testator to acknowledge his will, i. e., to adopt as his will a writing that had not been signed by him. The proper construction of the statute stated in a single sentence is that the.acknowledgment is a substitute for the circumstantial act of the witnesses, i. e., their actual witnessing of the writing of his signature by the testator in case they have omitted so to do; but that it is not a substitute for the essential act of the testator, i. e., the signing of his written will which in no case can he omit to do. Being unable to adopt a construction of the statute that varies its plain terms and which by dispensing with the signing by the testator of his written will dispenses with all of the safeguards thus thrown around this essential testamentary act, no course is open to me but to deny that the will in the present ease was properly admitted to probate.
For affirmance—Swayze, Tkenchard, Bergen, Yooriiees, Minturn, Kalisot-i, Yredenbcrgh, Congdon, White—9. For reversal—The Ci-iiee-Justice, Garrison—2.