Note on Preference on Calendar.

dower is in contest, this is no reason why either one of the actions should not be preferred under the statute. Yates 7'. Stiles, 15 W. Dig. 113.

Rule 36; defendant in custody; property attached.] Where the defendant is in actual custody under an order of arrest, he is entitled to a preference even though he has served a cross-notice of trial. Reilly v. Byrne, 1 Civ. Pro. R. 201; Smith v. Keepers, 5 Civ. Pro. R. 66.

The preference is available to the plaintiff as well as to the defendant. Knox v. Dubroff (in text).

It has been held that where both parties notice the cause for trial without giving the notice required by section 793, the plaintiff's right to a preference is waived. Robinson v. Schellhaas, 62 How. Pr. 489. City National Bank v. National Park Bank, Id. 495.

Notice of trial must be served.] The party cannot secure a preference under Code Civ. Pro., § 791, without having served a notice of trial. Ritchie v. Seaboard Nat. Bank, 12 Misc. 146.

Waiver. The waiver of a right to a preference by serving a notice of trial without an order or notice of motion for preference, cannot be cured by the unnecessary serving of a new notice of trial. Fox v. Quinn, 12 Supp. 725

See, also, Robinson v. Schellhaas, 62 How. Pr. 489; City National Bank v. National Park Bank, Id. 495.

Court of Appeals.] The provision of Code Civ. Pro. § 791 which specifies as one of the causes entitled to a preference, a cause entitled to a preference under the general rules of practice," (subd. 10) does not apply to the Court of Appeals, and to obtain a preference upon the calendar of that court in a case not designated in the Code, or the rules of the Court of Appeals, the application must be addressed to the discretion of that court, and such facts must be shown that a preference will be deemed proper in the interests of justice. Nichols v. Scranton Steel Co., 135 N. Y. 634. In that case, the sole facts relied upon were that certain certificates of stock belonging to the applicant had been levied upon under attachment, and it was held that they did not justify the granting of the motion.

A claim for preference on the calendar of the Court of Appeals should be made in the notice of argument stating the ground on which a preference is claimed. Taylor v Wing, 83 N. Y. 527.

The preference on the calendar of the court in an action for dower authorized by Code Civ. Pro. § 791, sub-division 6, can be claimed only when the proof, that is, "that plain

Matter of Whitney.

tiff has not sufficient means of support aside from the estate in controversy was made, and an order allowing the preference obtained, as required by § 793, before the notice of argument was served. Bartlett v. Musliner, 92 N. Y. 646.

An appeal cannot be heard out of its order on a calendar on the motion of the respondent on the ground that the appeal is frivolous. Rogers v. Hosack, 5 Hill, 521; Wilder v. Lane, 34 Barb. 54; S. C. 12 Abb. Pr. 351.

The party desiring a preference on a calendar of the Court of Appeals must procure an order therefor from the court or a judge thereof, upon notice to the adverse party. Bank of Attica v. Metropolitan Nat. Bank, 91 N. Y. 239.

MATTER OF WHITNEY.

Court of Appeals; June, 1897.

Will; when not subscribed at end within statute.] Where a will was written upon a printed form covering one page, and the testator and subscribing witnesses signed it at the foot thereof, and the testator added the words "see annexed sheet," and on the separate slip of paper were written two additional subdivisions to the will, and it was attached to the face of the will with metal staples so that the slip annexed had to be raised up or turned back, in order to read the first and second clauses, and it was evident that it was possible to easily remove such annexed sheet after the execution of the will, and to substitute another without danger of detection,-Held, that the will was not properly subscribed by the testator at the end thereof, as required by the statute (2 R. S. 63, § 40).*

Appeal from a judgment of the General Term of the Supreme Court, fifth department, which reversed a decree of the Surrogate's Court of Monroe county, refusing to admit to probate the alleged will of James R. Whitney, deceased.

* See Note on Testator's Subscription at End of Will, following this case.

Matter of Whitney.

This appeal presents the question whether the paper writing alleged to be the last will and testament of James R. Whitney, deceased, was subscribed by the testator at the end thereof, as the statute requires. (2 R. S. 63, § 40.) The Surrogate's Court of Monroe county held that it was not, and the learned General Term has reversed the decree. The facts in the case are undisputed. The will is drawn upon a printed blank, covering only one page, and the testator and subscribing witnesses signed at the foot thereof.

The subdivisions of the will, marked respectively "First" and "Second," fill the entire blank space in the printed form, and at the end of the second subdivision are the words," See annexed sheet." On a separate slip of paper are written two additional subdivisions, marked respectively "Third" and "Fourth," and this is attached to the face of the will immediately over the first and second subdivisions, by metal staples, so that the slip annexed has to be raised up or turned back, in order to read the first two clauses.

Held, that the alleged will was not subscribed at the end thereof, citing Matter of Hewitt, 91 N. Y. 261; Matter of O'Neil, 91 N. Y. 516; Matter of Conway, 124 N. Y. 455; S. C., 36 St. R. 486; rev'g 58 Hun, 16; Matter of Blair, 84 N. Y. 581; aff'd without opinion, 152 N. Y. 645. The only reference to the annexed slip is in the will, and the paper attached contains no word or sign to connect it with the main instrument. Furthermore, the separate slip on which two subdivisions of the will are written, is attached to the face of the printed blank by metal staples, and could be, after the execution of the will, removed and another slip substituted without danger of detection. The statute should not be defeated by judicial construction or frittered away by exceptions. Sisters of Charity v. Kelly, 67 N. Y. 416. While wills are interpreted so as to carry out the intention of the testator, that rule cannot be invoked when construing the statute regu

Note on Testator's Subscription at End of Will.

lating their execution, as in the latter case courts do not consider the intention of the testator, but that of the legislature. Matter of O'Neil, 91 N. Y. 516.

The cases referred to by the learned General Term to the effect that any written testamentary document in existence at the execution of the will may by reference be incorporated into and become a part of the 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 to which reference is made (Brown v. Clark, 77 N. Y. 377) have no bearing upon the point we are considering.

Judgment of the General Term reversed, and the decree of the Surrogate's Court of Monroe county affirmed, with costs.

Opinion by BARTLETT, J. All concur.

Charles S. Baker, for appellants.

George E. Warner, and Henry J. Sullivan, for respond

ents.

NOTE ON TESTATOR'S SUBSCRIPTION AT END OF WILL.

The statute (2 R. S. [9th ed.], p. 1877, § 40) provides: $40. "Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner :

"1. It shall be subscribed by the testator at the end of the will.

"4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator."

The courts have strictly construed this section and invariably required an exact fulfillment of its requirements, for the reason mainly that the statute was intended

Note on Testator's Subscription at End of Will.

to make the alteration of wills as nearly impossible as such a thing could be done by statute.

In Matter of Blair (84 Hun, 581; aff'd without opinion 152 N. Y. 645), after the will had been drawn the testator requested the draughtsman to add another clause giving a power of sale to the executors named in the will of one piece of real property, and stated to him at the time, that this provision had nothing to do with the will, except that he wanted the executors to have sufficient cash in hand to pay the various money bequests. The testator then signed the will in two places: First immediately after the testimonium clause, and, second, at the end of the additional clause giving the executor the power of sale. The witnesses signed only once at the end of the attestation clause, and before the clause which was added giving the executor the power of sale. The court reversed the decision of the surrogate in admitting the will to probate, and said at page 585: "The fact that no harm will be likely to result in this case from the probate of that part of the will which precedes the first signature of Blair should not have much weight with the court for the more important question after all is whether the decision will establish a good or a bad precedent." The court then declares that it would establish a bad precedent on the authority of the case of Sisters of Charity v. Kelly (67 N. Y. 409), where it is said that the provision is a wholsome one and was adopted to remedy evils, or threatened evils, and that it should not be frittered away by exceptions.

In Matter of O'Neil (91 N. Y. 516), the instrument was drawn upon a printed blank, the formal commencement being on the first page and the formal termination at the foot of the third page. The blank space was filled on the first, second and third pages, and the last clause of the will was partly written on the third page and the balance carried over to the blank fourth page. The names of the testator and the witnesses were subscribed near the bottom of the third page, below the formal printed termination of the will, and there only. The written matter on the fourth page was not connected with the main body of the will by reference of any kind, although it was obviously a continuation and completion of the last paragraph of the will, and the court held that the will was not subscribed at the end thereof.

In Matter of Conway (124 N. Y. 455; s. c., 36 St. R. 486; rev'g 58 Hun, 16), the facts were very similar to those in Matter of O'Neil (supra) with the exception that at the end of the provisions in the body of the will were