Lane

Appeals from the judgment revoking the probate of a will, and from the order denying a motion for a new trial.

The facts disclosed by the evidence without conflict are as follows: The will of Ozias Walker, deceased, was written by C. Gr. Warren, the attorney at law of the testator, and was executed in the presence of H. C. White and 0. Gr. Warren, who were requested by the testator to attest, as witnesses, its execution. The requirements of the statute were complied with in all respects, saving that the witness C. Gr. Warren, in signing his name as a witness at the end of the will, inadvertently wrote the *390 name C. G. Walker, thus employing his own .initials but the testator’s surname.

Upon this showing the court revoked the probate of the instrument, and the propriety of its action in so doing is the sole question presented upon this appeal.

At the outset of this consideration it is proper to say that the right to make testamentary disposition of property is not an inherent right or a right of citizenship,nor is it even a right granted by the constitution. It rests wholly upon the legislative will, and is derived entirely from the statutes. In conferring that right the…

I dissent. In my opinion, there was in this case a sufficient compliance with the formalities prescribed by the code for the attestation of a will. It is true that the right to make testamentary disposition of property—like most other rights—rests upon the legislative will; but that legislative will has been uniformly exercised in favor of the right in all English speaking countries, and in nearly all others, from time immemorial, so that the right has come to be a usual, well-established, and most important attribute of ownership. Therefore, in dealing with an attempt to exercise that right the general rules of construction should be applied—that is, the provisions of the code “ are to be liberally construed with a view to effect its objects.” The signature of the witness Warren in this case, as shown beyond question, would be held good if any written instrument or paper known to the law were involved other than a will, and I see no good reason why the same' rule should not apply here. To allow a will to be defeated by the careless (or intentional) misspelling of his name by a subscribing witness would lead, I fear, to great abuses. If a man should not have the right to make a…

I dissent. I do not think a man’s testamentary disposition of his property should be defeated for the reasons here given. The argument requires a too technical analysis of terms and statutes *398 in order to arrive at such a result. While the right to dispose of property by will is purely statutory, still it can hardly be said to be a mere matter of legislative grace, for it has become almost an inalienable right— made so by reason of its long practice and approval in all civilized nations. It is conceded that if the testator, Walker, had made a like mistake, and signed his name Warren, it would not have defeated the will; but it is now held that the witness Warren having made the mistake in signing his name Walker, the will is avoided. I have no idea that the legislature, in formulating the statute as to the character of the signatures, ever intended such results to follow; and I am satisfied it never intended to attach any different meaning to the two phrases, namely, “ sign his name as-a witness,” and “ subscribed by the testator”; or that the legislature ever intended to bar a man from being a witness to a will, who was unable to sign his name, any more than it intended to bar…

I dissent from the conclusion reached by the majority of the court, and agree with what is said by Justices McFarland and G-aroutte.

I think, by a too close adherence to the mere letter of the statute, the court, in the main opinion, loses sight of the evident purpose intended to be subserved by the provision in question. When the witness Warren, intending in perfect good faith, as is conceded, to write his own name, wrote his own initials, but inadvertently added the name of the testator, instead of his own, it was, to all essential intents and purposes, a signing of his name within the spirit and intent of the statute, since it met every purpose designed to be subserved thereby. And this view, in my judgment, is sustained by the case of Meehan v. Rourke, 2 Bradf. 385 , cited in the main opinion. There the name of the witness was written by another, and merely vised by the mark of the witness himself, although the requirement of the statute, like our own, was, that the witness should sign his name. But it is said by the surrogate, in addition to the language quoted in the majority opinion: “I think the requisition of the statute sufficiently complied with by the name of the…