WEEKLY NOTES OF CASES. was not signed by the testator "at the end thereof," as required by the Act of April 8, 1833, § 6 (Purd. Dig. 1474, pl. 6). The instrument in question was written on the first and third pages of a sheet of foolscap VOL. XV.] THURSDAY, MARCH 5, 1885. [No. 30. paper, and was signed and sealed by the testator Supreme Court. Oct. & Nov. '84, 32. at the foot of the said third page of the sheet, and was there attested by three subscribing witnesses. On the fourth page of the sheet of paper was written an unsigned and unattested clause. The following is a full copy of the instrument, October 20, 1884. showing the contents of each page of the sheet, and showing certain erasures and interlineations which appeared in the original: David S. Baker's Appeal. Wills-Execution thereof-Act of April 8, 1833, sect. 6-Signing" at the end thereof" - Construction-Reference in will to unsigned clause on another page-When such clause is part of the will. An extraneous, unsigned writing may, by force of a clearly expressed intention in the body of a will, constitute part of the will itself. The reference in the will must be complete and unambiguous, it cannot be aided by extrinsic proof; but the identification of the writing referred to may be the subject of extrinsic parole testimony. In whatever order of pages or sheets a will may be written, it is to be read according to the obvious inherent sense and adaptation of parts. A will signed at the end of the obviously inherent sense, though not at the end in point of space, is "signed at the end thereof," within the meaning of the Wills Act of 1833. A will was written on the first and third pages of a sheet of paper, and signed at the end of the third page. In a devise to A., written on the third page, numbered "4th," certain words describing the property devised were erased, and the words "See next page" were there interlined. On the fourth page of the same sheet of paper was written an unsigned clause, numbered" 4th," making a bequest to A., and also additional bequests to other beneficiaries. The scrivener who drew the will testified that the erasure and interlineation were made by him by testator's direction, and he identified the writing on the fourth page as the subject of the said reference in the will, and as having been written by him at the testator's direction prior to the signing by the testator: Held, that the writing on the fourth page was to be read into the will as constituting the 4th clause thereof, and that the entire instrument, with said clause incorporated therein, should be admitted to probate as the testator's will. Appeal of David S. Baker from a decree of the Orphans' Court of Washington County, reversing the decree of the Register of Wills admitting to probate a certain testamentary instrument as the last will and testament of George Baker, deceased, on the ground that the same [On first page of paper.] "In the name of God, amen. "I, George Baker of Beallsville Borough, Washington Co., Penna., considering the uncertainty of this life, and being infirm in body, but sound and proper mind, and memory, do make and publish this my last Will and Testament in manner and form following, SS. I resign my Soul to my Creator God, through Jesus my Savior, and my body to my mother Earth, my remains to be Baryed in the Methodist Episcopal Burying, known as Taylor's Grave-yard, in W. Pike Run Township, in a decent and becoming habilament for the dead, and a neat Tombstone to mark the place of my repose, my funeral and grave expenses to be first Paid out of my Estate, then my debts, if any, after a legal settlement; Then the court charges, and other expenditures necessary for arranging and settleing my worldly business, in a proper manner, the remainder of my estate to be Proportioned to our Children and Grand Children after the decease of my beloved, if she survives me, as follows. "Ist. I give and bequeath to my wife Charity, Buryal, grave and Tombstone expenses the same as my own, and further I bequeath to my said wife Three thousand five hundred dollars in lieu of her Dowry in my real estate. Also All my house hold and Kitchen furniture, Also Two Milch Cows. "Disposal of my other property. "The home farm to be sold within twelve or eighteen months after my decease. Also one undivided half of the back farm; my stock and farming implements, grain and other notions as soon as convenient. "I give and bequeath to the M. E. church of Beallsville, Wa. Co. Pa., one hundred dollars, to be paid for a Parsonage Property if the church build or buy one within two years of the date of the will. [On third page of paper.] There Baker, the executors therein named. 2nd. I give and bequeath to our son Wil-upon, George M. Baker, a son of the said George liam T. Baker, One Thousand Dollars, to Paid Baker, testator, appealed from the said decree within two years after the decease of my wife of probate on the grounds (1) that the said will was not executed according to law; and (2) that it was not signed by the testator at the end thereof, as required by the Act of April 8, 1833, § 6. Upon the petition of said George M. Baker, a decease. "3rd. I give and bequeath to our son, George M. Baker, two hundred and twenty or forty acres in Ripley County Missouri Provided he redeems the same from the tax sale before this time. "4th. I give and bequeath to David S. Baker, See Next Page. our son, Two hundred twenty or forty acres of land in the state of Missouri Ripley County, Previded he "5th. I give and bequeath to Charlotte Jane, our daughter, intermarried with Heaton Luse, the undivided half of the back farm. "6th. I give and bequeath to our son, Lewis J. Baker, Two thousand Dollars, to be paid in rotation. "7th. I give to our our two grand daughters Viola & Ella Daughters of G. M. Baker, in bequest, each Four hundred dollars, to be paid to each when she becomes twenty one years old, to be paid to Guardian in rotation or No. 3. Said G. M. Baker to be paid the interest of above daughters money yearly by guardian. 8th. I also, hereby appoint my beloved wife Charity and David S. Baker my legal executors, with Salem Iiams as advison or assistant, of my Estate, hereby Revoking all former Wills by me made. In witness of which, I have hereunto set my hand and seal, the day of June A. D. 1880. GEORGE BAKER [SEAL] "Signed, sealed, published, and declared, by above named George Baker, to be his last will and testament, in the presence of us, who at his request, and in his presence, have signed our names as witnesses to the same. J. M. MILLER, Jr., [On fourth page of paper.] "4th. I give and bequeath to our son David S. Baker our son, Two thousand to be paid in rotation of numbers. "I give and bequeath to our Grand Children Margaret Baker and George Baker, Daughter and Son of David S. Baker Five hundred dollars each, to be paid in rotation in rotation, to Lewis J. Baker, whom I appoint guardian for the same. Also I appoint the same as guardian for G. M. Baker's two Girls, Viola and Ella." This paper, including the writing on the fourth page, was admitted to probate by the Register of Wills, May 4, 1881, and letters testamentary were issued to Charity Baker and David S. citation was issued to the executors and other parties interested in said will, who filed an answer, averring that the said will was legally executed by the testator. An examiner was appointed to take testimony, before whom Salem liams testified as follows:[The original will of George Baker, deceased, filed in the Register's office to No. 431, shown to witness.] "I was the scrivener of the will of George Baker, deceased; that is my writing. The "Objection by contestant's counsel. contestant objects to any testimony of the scrivener respecting what took place at the execution of the will, or the order in which its different parts were written, as irrelevant and incompetent. "On the 13th of June, 1880, Mr. Baker came to my house; he asked me to write his will, and I told him I would take some notes and write out what I could, and go over to his house the next afternoon and finish the writing. I received instructions from him while at my house how to write the will. Before I went to him the next day I had written, I think, the whole of the first page of the will as it is now written, and a part of the second page of writing. I went to his house about three o'clock, or a little after, the next day, which was the 14th of the month. When I went to his house, about the first change was the erasures in the second paragraph; perhaps the next thing done was the interlineation appearing in connection with the third paragraph. The next thing done was the erasure in the fourth paragraph, and the interlineation, 'see next page.' I then added the seventh paragraph and the eighth paragraph, and the attestation clause. I correct myself. I mean to say, after I wrote the clause, see next page' in the fourth paragraph, I turned over and wrote what appears on the fourth page of the will. After writing that, I wrote the seventh and eighth paragraphs, and the attestation clause. I am sure the above, as corrected, is the order in which I wrote the will; that is correct. This will, the whole of it, except the signatures of the testator and two witnesses, is in my handwriting. All of the writing and erasures were made, except the signatures of the witnesses, before the testator signed it. With the will before me, I state that the whole of it, as it now appears, is as it was prepared by me before he signed it, and as it was executed by him. I saw Mr. Baker and the witnesses sign it; I was present. "It is contended by counsel for proponents, that the phrase,' at the end thereof-in the Act of 1833, must be understood as referring to the end in point of time,' and not to the end in point of space.' The argument for this view is ingenious; and, if the case were one of first impression, it might be convincing. But, a careful examination of Hays v. Harden (6 Barr, Heise v. Heise (7 Cas. 250), (the only reported cases in this State bearing directly on the question), has satisfied me that the opposite view has been adopted and confirmed by our Supreme Court as the correct interpretation of the statute; and hence, that the will in question here was so defectively executed, that it ought not to have been admitted to probate. “After I had made the erasures and additions as they now appear, and before Mr. Baker signed the will, I said, you had better let me take this will home with me and transcribe it; put it in better order; he said it was late and we couldn't do it that evening, and he wanted it finished that evening, and he said it was just as he wanted 413), Wikoff's Appeal (3 Harris, 291), and it. I then read it to him carefully all through, including the fourth page; he signed it. No person was present in the room but Mr. Baker and myself when the will was signed; there had been no person present but him and me while I was making the erasures and additions before he signed the will. After he signed it, he and I went to the store of J. M. Miller, Jr., where, in his presence and also in mine, the will was signed by the subscribing witnesses. After this, Mr. Baker took the will, and said he would look over it, would date it and lock it in his desk. I never saw the will from that day, until after his death; it was then in a sealed envelope. Mr. Baker died near the last of April, 1881." Cross-examined. "This will was signed on the 14th of June, 1880. I fix this date by a memorandum I have. It is a memorandum in a book I keep for my private affairs, and was a note of the charge I made for writing the will. He signed the will late in the afternoon, I suppose it was near sundown. From the time I went there until I left (except the time Mrs. Baker was in the room), we were occupied in writing and arranging the will. When I went there I had five paragraphs written, and in the fourth I had put a wrong name, and hence the erasing and referring to 'next page' in writing. Everything on the fourth page was written before I wrote the seventh paragraph. The whole of the will was written by me." The two other subscribing witnesses testified that they signed in the presence of, and at the request of the testator; and said that their attention was not directed to the contents of the will, or the erasures and interlineations, or to the fourth page of the sheet, and they could not say whether, when they signed as subscribing witnesses, anything was written on the fourth page or not. After argument, the Court (HART, J.) filed the following opinion and decree : "The only question here is, whether the paper presented as the will of George Baker, deceased, was signed by him at the end thereof, as required by the Act of 1833 (2 Br. Pur. 1474). It is admitted, and the depositions prove, that it was signed and attested at the conclusion of the third page, but that it was not so signed at the end of the fourth, or final page, which contains important testamentary provisions. "I have been cited by counsel for appellees to the case of Tonnele v. Hall (4 Comstock, N. Y. 140). There the will consisted of a number of connected sheets, or folios,' was signed at the end by the testator and subscribing_witnesses; but, attached to these leaves or sheets containing the will proper, was an unsigned map, showing the location, numbers, etc., of testator's lots in the city of New York; to which map references were made in the various devising clauses of the will. The Court of Appeals held, that under the statute of New York, which is substantially the same as ours, the will was sufficiently executed. But the decision was put expressly upon the ground that the references to the map virtually incorporated so much of it into the will as was necessary to explain or illustrate the devises; and the effect would have been the same if the references had been to the official map in the City Register's office, of which that attached to the will was a reduced copy. But the Court guard their decision from any misconstruction by saying that the object of the statute was to insure a signature of authentication, distinct from, and at the close of, the descriptive and disposing parts of the will.' That kind of authentication is precisely what is lacking in this case. "Decree. "And now, December 13, 1883, the judgment of the Register of Wills, admitting to probate the paper writing in dispute as the last will and testament of George Baker, deceased, is reversed; and the letters testamentary thereon are revoked, cancelled, and annulled. And it is further ordered that the appellees pay the costs of the appeal." David S. Baker thereupon took this appeal, assigning for error the said decree. Boyd Crumrine (with whom were J. W. & A. Donnan), for the appellant. There is no dispute as to facts, and no allegation of fraud. The sole question is whether the will was legally executed by the testator. It has been held that a will may be written on separate | nected in any way with the contents of the will; pieces of paper, which need not be physically and the scrivener alone testifies that it was writunited; it is sufficient if they are connected by ten there before the testator signed the will. their internal sense, or by a coherence or adaptation of parts; and one signature at the of the will is all that it required. 66 Wikoff's Appeal, 3 Harris, 281, and other cases cited in the opinion of the Supreme Court, infra. In ascertaining what is the end of the will," regard should be had to the completion of the expression of testamentary intent rather than to the position of space upon the paper or papers containing the writing. Interlineations (which are presumed or may be proved to have been inserted before execution) do not invalidate a will. What is the difference between an interlineation written between the lines of a will, above the signature, and a reference interlined in the body of the will, to a clause which is written beneath the signature, because there was not sufficient room to interline it above? We submit there is none, provided the reference in the will is clear and unambiguous, so as to express the testator's intention to incorporate the matter referred to in the body of his will as a part thereof. The statute of Vict. ch. 26, like our Act of 1833, requires all wills to be signed at the end thereof," and the English authorities, both before and since that statute, establish the rule that a clear reference in an attested will to an unattested extrinsic writing, which is in existence at the time the will is executed, and which is capable of identification as the subject of the reference either by intrinsic evidence or by extrinsic parole evidence, requires a probate court to consider such unattested writing either in connection with the will, or as incorporated in it, according to the expressed intention of the testator. Habergham v. Vincent, 2 Vesey, Jr., 204, 228. I Redf. on Wills, 261. 1 Jarm. on Wills, 228. See, also, Hauberger v. Root, 6 W. & S. 431. In re Dickins, 3 Id. 60. In re Francis Willesfortd, 3 Id. 77. The law requires wills to be proved by the testimony of two witnesses; the position taken by the appellant would permit a scrivener to add anything he pleased below the testator's signature, and prove his authority so to do by his unsupported testimony. This was precisely what the Act of 1833 aimed to prevent. Report of the Commissioners, Parke & Johnson, 874. If the doctrine contended for be admitted to any extent, it should be confined to those cases where the extraneous matter sought to be read into the will is by its inherent sense identified with and necessary to an intelligent understanding of the terms of the will preceding the signature; and not be extended to cases where extraneous matter, in no way connected with the terms and inherent sense of the will, is identified by parole testimony. January 19, 1885. THE COURT. The sixth section of the Act of April 8, 1833, P. L. 249, provides that "every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him, at the end thereof," etc. The construction which had been previously given to the Act of 1705, made this provision necessary. The plain purpose of the Legislature in requiring the signature of the testator to be written at the end of the will, was to assimilate wills, in the mode of their execution, to other instruments for the transmission of title, to furnish a more certain and satisfactory means of authentication, and thus to distinguish what might be mere incomplete memoranda, from that which certainly declared the full and final That this was at least the primary and principle of the testator respecting his property. purposes object of the statute of 1833, is abundantly shown not only in the report of the commissioners (Parke & J. 874), but in numerous decisions of this Court since its passage. (Stricker v. Groves, 5 Wharton, 385; Hays v. Harden, 6 In the Goods of Almosnino, 6 Jurist (N. S.) 302; Barr, 409.) It is the animus testandi, therefore, 1 Sw. & Tri. 508. Tonnele v. Hall, 4 Comst. (N. Y.) 140. M. C. Acheson (A. W. Acheson with him), for the appellees. If this will is held to be valid, any dishonest scrivener may easily perpetrate a fraud. For it is by the testimony of the scrivener alone in this case that an unsigned and unattested writing on the fourth page is identified and proved. That writing, while it contains a bequest to David S. Baker apparently in substitution of an incomplete and erased devise to him in the body of the will, contains also other bequests not con which is manifested by the testator's signature to a will, and unless signing be prevented by an absolute inability, the fact of a complete testamentary disposition cannot otherwise appear. The will of George Baker is commenced upon the first, and is formally concluded upon the third page of a folio of foolscap paper. The fourth page of the paper, however, contains another, and further testamentary provision, and, as the signature to the will is at the end of what is written on the third page, it is urged, on the one side, that it is not signed, according to the statutory requirement, at the end thereof; on the other side it is contended that what is written on the fourth page is, by clear reference, incorporated into the body of the will, and that although the signature is not at the end of the writing, in point of space, yet if the item on the fourth page be drawn into its appropriate and clearly intended connection, on the third page, the signature will then appear at the end of the will in point of fact. It will not, we think, be seriously questioned, notwithstanding the provisions of the Act of 1833, that any relevant paper or writing attached or detached, if there be no reasonable question as to its identity, or of its existence at the execution of a will, may be so referred to therein as thereby to become incorporated with its provisions. No case in Pennsylvania has been cited by counsel, with the exception perhaps of Hauberger v. Root (6 W. & S. 431), in which this rule is expressly asserted; nor in the somewhat hasty search we have made, do we find any in which the precise point is presented; but in England, and in the Courts of some of the States, under similar statutes, the doctrine is distinctly declared. 15 and 16 Vict. c. 24, the Legislature interfered to alter the law so established; but in this amendatory statute it is expressly provided that no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor to any disposition or direction, inserted after the signature shall be made. Upon these provisions of the statute law of England, the case of Allen v. Maddock (11 Moore's Privy C. C. 426), was decided. In that case after an extended reference to all the English authorities, and a full discussion of the subject, it was held that an unattested paper, which would have been incorporated in an attested will or codicil, executed according to the Statute of Frauds, is now in the same manner incorporated, if the will or codicil is executed according to the requirements of the Wills Act, I Vict. c. 26; that where there is a reference, in a duly executed testamentary instrument, to another testamentary instrument, imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence as to its identity, and such parol evidence is not excluded by the statute 1 Vict. c. 26. The judgment in Allen v. Maddock was delivered by by Lord KINGSDOWN, who says: "It was not contended in this case, nor so far as we are aware, has it been contended in any case, since the Wills Act of 1837 (1 Vict.), that no reference, however distinct, is now sufficient to incorporate another testamentary paper in the paper duly executed as a will or codicil; but the question has always been, what reference in the valid paper is sufficient to let in evidence to identify the invalid." The doctrine declared in Allen v. Maddock has not, we believe, in any respect, been modified, changed, or doubted. It is followed in many subsequent cases, and is frequently referred to as containing a clear and elaborate exposition of the law on the subject. (In re Almosnino, 6 Jurist (N. S.) 302; 1 Sw. & Tri. 508; In re Ebenezer White, 30 L. J. 55; In re Birt, 24 L. T. R. 142.) In Habergham v. Vincent (2 Vesey, Jr. 223), which was a case decided under the Statute of Frauds, WILSON, J., sitting with Lord Chancellor LOUGHBOROUGH, says: "I believe it is true, and I have found no case to the contrary, that if a testator in his will refer expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper, whether executed or not, makes part of the will; and such reference is the same, as if he had incorporated it, because words of relation have a stronger operation than any other." This case was followed In re Countess of Durham (3 Curtis, 57), and in many other cases, both in the civil and ecclesiastical Courts of England, and it cannot be doubted that such was the rule in the authentication and probate of wills, under the Statute of Frauds. By the Statutes of 7 Will. IV. and I Vict. c. 26, however, all previous provisions as to execution and attestation of wills were re-required that every last will and testament of pealed, and it was thereby enacted that no will should be valid, unless in writing and executed as therein provided, and one of the requisites was that it should be signed, at the foot or end thereof, by the testator or by some other person in his presence and by his direction. In Willis v. Lowe (5 Notes of Cases, 428), and in Sinere v. Bryer (6 Moore's P. C. C. 404), however, it was held that the signature must be so affixed at the end of the will, as to leave no blank space for any interpolation between the end of the will and the signature. This was found to produce such extensive injustice that by the statute In New York the Revised Statutes, inter alia, real or personal property should be subscribed by the testator, at the end thereof. In Tonnele v. Hall (4 Comstock, 140), a will was written on several annexed sheets of paper, and was duly executed; a copy of a map was upon the last of the sheets composing the instrument; it was referred to in the will as being annexed, and for the description and designation of the several lots devised, but it was not signed by the testator nor attested by the witnesses. The Court of Appeals held that where a will, otherwise properly executed, refers to another paper already written, and so describes it as to leave no doubt |