I concur, and desire only to note a point strongly urged in the argument of counsel for appellants, but not specially adverted to in the opinion of the court. He insists that section 1276 of the Civil Code, like the rest of its provisions, must be liberally construed "with a view to effect its objects and promote justice." (Civ. Code, sec. 4) I fully agree with him on this proposition, but I apply it differently. His argument is in effect that we should give a liberal construction to wills which deviate from the statute in the mode of their execution for the purpose of sustaining them, whereas a proper application of the principle requires us to give a liberal construction and full effect to every provision of the statute designed to prevent the probate *Page 466 of spurious wills, although in so doing we may in a particular instance defeat an honest attempt on the part of a decedent to make a testamentary disposition of his estate. The evil of occasionally defeating such an attempt is far less serious than the establishment of a precedent which would open the door to the frauds which the statute was designed to prevent. Every statute of frauds is designed to promote justice by requiring wills and contracts to be executed with such formalities and indicia of genuineness as to make simulated and fraudulent writings of the classes defined impossible, or at least very difficult. Such statutes in the long run promote justice — which is their sole object — by shutting out opportunities of fraud. Where they defeat one honest purpose they prevent unnumbered frauds, which in their absence would be feasible and measurably safe. It would not, therefore, be a proper application of the principle invoked to weaken by construction the requirements of our statute prescribing the requisites of a valid will. By so doing we should no doubt be dealing most liberally with the efforts of decedents who have disregarded the law, but we should not be construing the law liberally to effect its objects. And unless we are to set ourselves up as better judges of the true policy of the law than the legislature, we should not be promoting justice.
As our law now stands, two witnesses are sufficient, so far as witnesses are concerned, for the due authentication of a will. Suppose that the law should be so changed as to require three witnesses, and suppose a will offered for probate attested by two only. If they were perfectly trustworthy witnesses every one might be entirely satisfied of the genuineness of the instrument, but could any court admit it to probate? Our law does not require three witnesses, but in place of a third witness it requires something else which itself is a test of authenticity, — viz., the signature of the alleged testator at the end of the will, and this can no more be dispensed with than the third witness if three witnesses were required.
In determining what is the end of a particular will no doubt the principle of liberal construction may be applied, but even liberality has its limits. Counsel for appellants is, it is true, able to cite us to a number of cases which sustain his *Page 467 contention that a signature is at the end of a will, no matter how far from the end of the writing, if it is not followed by any dispositive clause. I think, however, that the cases which hold otherwise, and especially the New York cases, are supported by the better reason. The true test to determine whether a decedent has subscribed his name at the end of a will is to take the document as it left his hand, and then, disregarding the signatures of the witnesses, and all evidence aliunde, to see whether it is apparent that his name was placed where it appears for the purpose of execution.
Applying that test in the present instance, it is very far from being apparent to me that the name of Henry Seaman was indorsed on the back of this will for the purpose of executing it. In the course of my experience I have seen hundreds of wills, deeds, and other written contracts; I have frequently seen the names of the parties indorsed on the back of such papers before execution, and I cannot recall a single instance in which any of such documents was so indorsed for the purpose of executing it. The testimony in this case shows that in fact Henry Seaman attempted to execute his will in that way, but this testimony cannot be considered for the purpose of determining whether the statute has been complied with. And, indeed, what the testimony shows is that he wrote his name on the back of the paper because of his opinion that his signature at the end of the will was not necessary. It is unfortunate to the intended objects of his bounty that he was not better informed, but it would be more unfortunate if the courts out of sympathy for them should relax the wholesome stringency of the law governing the authentication of wills.