The appellant claims that the judgment should be reversed upon the authority of Hewitt's Case (91 N.Y. 261), and O'Neil'sCase (Id. 516). In Hewitt's case the witnesses signed in the middle of the will, and the facts have no similarity to the present case.
In O'Neil's case the will was written on a printed form consisting of one sheet of four pages. The blank left for the insertion of special and substantial parts of the will was nearly three pages, and the formal termination and attestation clause was at the end of the third page. This was all filled up, and being of insufficient size to contain all the provisions the testator desired to make, the remaining portion was carried to the fourth page.
The names of the testator and witnesses appeared at the foot of the third page. These facts are similar to those in the case before us, but in one very essential particular the cases differ.
In O'Neil's case there was no reference in the body of the will to the writing on the fourth page, and that part of the will was in no way authenticated, and this circumstance was referred to by Judge RUGER in his opinion.
In this case there is a clear and distinct reference in the body of the will to the provision on the back of the paper, and they are connected by means of the words in parenthesis and their relation to each other indicated. *Page 466
It is well settled that an interlineation or erasure on the face of a will does not necessarily destroy it, and there is no presumption where it is fair upon its face that it was made after execution. (Crossman v. Crossman, 95 N.Y. 145; Speake v.United States, 9 Cranch, 37; Bailey v. Taylor,11 Conn. 531; Jarman on Wills, vol. 1, p. 144.)
So it is also established by numerous authorities that any written testamentary document in existence at the execution of a will, may by reference be incorporated into and become a part of a will provided the reference in the will is distinct and clearly identifies or renders capable of identification by the aid of extrinsic proof the document of which reference is made. (VanCortlandt v. Kip, 1 Hill, 590; Brown v. Clark, 77 N.Y. 369; Matter of Comrs. of Washington Park, 52 id. 131-134;Tonnele v. Hall, 4 N.Y. 145; Burton v. Newbery, L.R. [1 Ch. Div.] 239; Williams on Executors, 97; 1 Jarman on Wills, 78.)
I think this will may be sustained within the principle of the authorities cited.
It would be quite too narrow a construction of the statute to hold that in no case is a will valid when a substantial provision was written below the signature when such provision is connected with the body of the instrument by a clear and distinct reference made to it.
By such reference it is incorporated into and becomes a part of the will, and no distinction is apparent between such a case and one where the testator writes upon the margin of the instrument or between the lines, and connects such writing with the body of the paper by an asterisk or hyphen.
In this case there are no suspicious circumstances appearing on the face of the will. It is all in one handwriting, and it is proved beyond question that the will was read to the testator and was executed in the condition it now appears, and the testator understood perfectly that part of the will was on the back of the paper. The words "carried to back of will" on the face of the paper, and the word "continued" on the back connect the two parts and indicate their relation to each other, *Page 467 and in determining where the end of the will is, the writing on the back is to be read as if written on the face of the will.
No one could read this will in the ordinary way and reach the end without reading that part on the back of the paper. When the words "carried to back of will" are reached, one naturally turns to the back of the paper, and the word "continued" connects the parts. When that part on the back is read, the reader returns to the face of the paper and resumes the reading at the beginning of the clause appointing the executor.
The case would be the same if, instead of adopting the course pursued, the draughtsman had written on the margin of the face of the paper what appears upon the back and connected it with the body of the instrument with an asterisk.
The case does not fall within the mischief that the statute was designed to guard against, and there is no authority holding such a will as this invalid.
In Sisters of Charity v. Kelly (67 N.Y. 409), the signature of the testator appeared in the middle of the clause appointing the executors. In that case Judge FOLGER said: "The instrument is to be scanned to learn where is the end of it as a completed whole, and at the end there found must the name of the testator appear."
Scanning this will to ascertain where the end is, we cannot ignore the words and symbols which connect the body of the instrument with the writing on the back, and reading it in the light and meaning of those words and symbols, the signature appears at the end.
The judgment should be affirmed.
All concur with PARKER, J., except BRADLEY, HAIGHT and BROWN, JJ., dissenting.
Judgment reversed. *Page 468