115 Va. 160 | Va. | 1913
delivered the opinion of the court.
Robert E. Macomber, named as executor in a certain paper wilting dated March, 1810, offered it for probate in the chancery court of the city of Richmond as the last will and testament of Betti'e W. Rowlan. All of the parties interested in the probate were summoned to appear before the court, a jury was asked for and impaneled, and the testimony of the subscribing witnesses having been introduced, Mary de Murguiondo, one of the parties contesting the will, demurred to the evidence; but the court overruled the demurrer and 'entered a judgment declaring the said paper writing so offered to be the true last will and testament of Bettie W. Rowlan, deceased; and thereupon a writ of error was awarded the appellant.
The paper which was produced and probated as the will of Bettie W. Rowlan, deceased, is written upon several sheets, and upon the margin of each sheet appears the name of Bettie W. Rowlan. When the attesting witnesses were called upon to witness the execution of the will, each one of the sheets of paper upon which the will appears, except the last, had already been signed by the testatrix, who in the presence of the witnesses affixed her signature to the margin of the last sh'eet nearly opposite to the end of the will, which concludes as follows:
“Witness my hand and seal, which I have set to this my will, consisting of six pages of paper, each of which bears my signature in the margin thereof, on this the day of March, 1910, at Richmond, Virginia.
[seal]"
Th’en follows the attestation of the witnesses as follows:
*162 “Signed, sealed, published and declared by Bettie W. Nowlan, as and for her last will and testament, in the presence of both of us, both being present at the same time, and both of us in her presence and at her request and in the presence of each other have hereunto subscribed our names as witnesses.
“Hugh W. Jones,
“E. G. Thomas.”
In their testimony before the jury, these witnesses to the will established every formality required by the statute law of this State with respect to the execution of a will, and the sole question for our determination is whether a signature of the testatrix upon the margin of the will is such a signature as is contemplated by our statute.
Our statute of wills, which is found in section 2514 of the* Code, as originally passed, was, as is stated by Judge Allen in Waller v. Waller, 1 Gratt. (42 Va.) 465, 42 Am. Dec. 564, a transcript of 29 Car. II, with the exception that it dispenses with subscribing witnesses in cases of wills wholly in the handwriting of the testator, while the English statute required the will to b'e attested and subscribed by three or more credible witnesses, in holographic as well as in other wills. In 1849 our statute was amended by the introduction of the words, “in such manner as to mak'e it manifest that the name is intended as a signature.” There have been numerous cases before this court arising under that statute, but they were all cases of unattested holograph wills.
In Ramsey v. Ramsey, 13 Gratt. (54 Va.) 664, 70 Am. Dec. 438; Roy v. Roy, 16 Gratt. (57 Va.) 418, 84 Am. Dec. 696, and Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775, it was held that the name of the testator appearing in the will was not placed there “in such manner as to make it manifest that the name was intended as a signature,” and the wills were rejected.
The will under consideration is an attested will, and the Virginia cases we have thus far referred to shed but little light upon the question to be decided.
Waller v. Waller, supra, was also a case of an unattested holograph will, but in the discussion of the case Judge Allen goes into the whole subject very fully and with his accustomed learning and ability, and his opinion sheds a flood of light upon the case under consideration, even though strictly speaking it may, with respect to attested wills, be considered in some degree obiter. The will in Waller v. Waller was a holograph will, in which the name of the testator appears only in the exordium: “In the name of God, amen, I, John Waller, of the county of Henry and State of Virginia . . . being desirous to dispose of all such worldly estate as it hath pleased God to bless me with, I give and bequeath the same in manner following.” There was no end signature, it was unattested and the will was rejected. Judge Allen, in his opinion, says: “The act of 1840 requires written wills, whether of real or personal estate, to be executed with the same solemnities. That law governs this case, and relieves us from many of the inconveniences growing out of the admission
“In attested-wills the connection between the testator and instrument is shown by the signing. Where the attesting witnesses prove he signed the instrument, or another in his presence by his direction signed it for him, the fullest evidence is obtained that the very paper produced is the one executed.
“The force of this evidence was somewhat impaired, when the courts held that it was not necessary the subscribing witnesses should see him sign, provided he acknowledged the signature to the paper they attested; as a mere acknowledgment was not so likely to be impressed on the mind as a formal execution in their presence.
“As the identity or connection of the instrument with the testator is the main fact to be determined by the proof of signing, there was not much danger to be apprehended in considering a signing of such a will at the top, the whole being in his handwriting, as a sufficient signing. Proof of the handwriting of itself connected the tes
“The connection of the testator with the instrument being thus ascertained in the various modes adverted to, the finality of an attested will is established by the publication and attestation. No man publishes an instrument as his last will and testament, and calls on witnesses to attest the fact, until he has completed the act. The attestation must be annexed or subscribed to a complete instrument, and to which, when so subscribed, no additions can be made. To the act itself the law attaches testamentary intent that it is a concluded instrument, and if the party is under no restraint, acts fre’ely, and is of sane mind, no further proof is requisite to sustain the instrument as a.will; and no proof, other than a revocation in the.mode prescribed,, will be received to show a change of testamentary intent.”
It would seem, therefore, from the opinion of Judge Allen, that the main fact of the connection of the testator with the instrument, may be established, not only by the signature of .th’e testator in the presence of subscribing witnesses, but by the mere acknowledgment in their presence of his signature; that such proof has been deemed sufficient in all the later cases; and that the finality of an attested will is established by attestation and publication; fox’, to repeat a pregnant sentence in the opinion of Judge Allen, “no maxi publishes an instrument as his last Avill and testament, and calls on witnesses to attest the fact, until he has completed the act. The attestation must be annexed or subscribed to a complete instrument, and to which, when so subscribed, no additions can be made.”
. ■ Meads v. Earle, 205 Mass. 553, 91 N. E. 916,- 29 L. R. A. j(N.- S.) 63, was an appeal from a deci’ee of the probate
“The finding must be interpreted to mean not simply that after writing her whole will she adopted as her signature her name as written previously in the exordium, but that at the time she wrote her name there she intended that it should stand as her signature to the will when completed, and that this intent continued to the end. Such a finding is perfectly consistent with what she did, and is not inconsistent with any act of hers. It explains any apparent incongruity in the evidence. It welds all the circumstances into one harmonious whole and is supported by the evidence.”
It is to be borne in mind that when the attesting witnesses were called upon in this case five sheets of the will had been identified by the signature of the testatrix upon the margin of each page; and that in the presence of the witnesses she affixed her name for the sixth and last time to the margin of the will as and for her signature, and declared it to be her last will and testament. The jury by their verdict have declared that the will was duly executed, the judge of the probate court has approved their verdict, and we have no choice but to affirm the decision, unless we are prepared to hold that a literal signing at the foot or end of the instrument is necessary in all cases, and this we are not prepared to do.
We gather from our statute, from the decisions of this and other courts, and especially from the opinion of Judge Allen in Waller v. Waller, that in holographic wills proof of the handwriting establishes the identity of the paper and the connection of the maker of the will with it; that the finality of such will depends upon the signature, which must be made “in such manner as to make it manifest that the name is intended as a signature”; and that in the case of attested wills not in the handwriting of the testator,
We are of opinion that the judgment complained of should be affirmed.
Affirmed.