84 Va. 358 | Va. | 1888
Lead Opinion
delivered the opinion of the court.
The will makes an unequal disposition of the property among the testator’s children in some respects, and its probate was resisted by all the children aforesaid, except one who is the wife of the executor named in the will, who is the propounder of the same, and is the appellant here, John ~W. Perkins. The county court rejected the will; and, on appeal to the circuit court, the case was tried, and the will again rejected; whereupon the case was brought hero by writ of error. The facts proved are certified, and it appears to have been proved that the will, and the inclosed paper claimed to be a codicil, are both, including the signatures, wholly in the handwriting of the testator; that the testator was seventy-three years of age at the time of his death, and that he was for some months next preceding his death in delicate health, but that his mind was unimpaired.
The first assignment of error here is the refusal of the court
Our statute (section 4, c. 118, Code Va. 1873) provides as to the execution of wills as follows: “ No will shall be valid unless it be in writing and signed by the testator, ór by some other person in his presence, or by his direction, in such manner as to make it manifest that the name is intended as a signature; and, moreover, unless it be wholly written by the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” It thus appears that by our law a will wholly written by the testator, and signed by him in such manner as to make it manifest that the name is intended as a signature, is complete without attestation. Without the attestation clause,
We are therefore not to consider the question whether a presumption is raised by an unsigned attestation clause against an imperfect and otherwise incomplete will; that is not the question which arises in this ease. There is no instrument otherwise incomplete which is to be affected by this unattested clause. The will must be conceded to be as perfect and complete under our law before the attestation clause was written as after it was written, unless the unattested clause so affects it as to render it invalid in some degree. Starting from this point, we will consider, then, what effect did the said attestation clause, unsigned, have upon this complete will.
It must be conceded that the signature to this will is so written as “ to make it manifest that it'is intended as a signature.” It could obviously have been intended for nothing else. It is the testator’s signature, and it is recognized as such in the body of the paper in due form. The statute, then, having been complied with in all respects, and the will complete, what presumption arises—what effect is produced on this complete instrument by the addition of the clause in question ?' The presumption is, and the probable intention of the testator was, to have the will attested when this clause was written. If he had done so, he would have added nothing to what was already complete. Hot having done so, is the will invalidated by this failure to carry out this unnecessary intention?
The testator must have intended one of these things—either to have carried out his first purpose, and failed by intention or accident; to have changed his Intention upon becoming aware that his first purpose was unnecessary; or to have held the purpose unexecuted in his mind. Before it was done or after it was done, the will wás complete. It was an act immaterial in itself to effectuate or destroy the will. Suppose we concede, for the sake of the argument, that he put the unexecuted clause on the paper with the distinct purpose of revoking it,
At our revisal in 1849, the revisors recommended, as they say, in conformity to the decision in Waller v. Waller, supra, an amendment to the section, the words, “in such manner as to make it manifest that the same is intended as a signature,” which
In the ease of Waller v. Waller, Brooke, J., dissented, but four judges rejected the will. Only three assign their reasons, hut these concur in rejecting the will because it did not manifest a finality of intention. Since the act of 1849, supra, the case of Ramsey v. Ramsey, 13 Gratt., 664, was decided in this court (in 1857.) In that case, which was concerning an olograph will, the only question raised and decided was as to the sufficiency of the signing where the name of the testator appeared in the beginning only, as, “I, Thomas Ramsey, of C., do make this, my last will and testament,” etc. The court held that the signing at the top alone was an equivocal act, and the will was rejected because the requirements of the statute were not complied with, and the will was not signed in such a manner as to make it manifest that the name was intended as a signature.
In Jarman on Wills, as to execution of wills, (volume 1, p. 77,) in the first note, it is said: “It should he observed at the outset that though a will he not properly executed as a will, with subscribing witnesses, it may still be good as a olograph, when that kind of will is allowed, if it answers the requirements of the statutes as to olographs, though it contain more than the statute requires ”; that something more than the statute requires, doubtless referring to an unexecuted attestation clause, as the case of Brown v. Beaver, 3 Jones, (N. C.) 516, is cited. In that case the attestation clause was signed by only one competent witness, one being rejected as incompetent. The will was then proved as a.olograph will, and the will was sustained, the court saying: .“Going beyond the requisition in respect to proofs cannot annul that which comes up to them.”
The case of Hill v. Bell, decided in the supreme court of North Carolina in 1867, (Phil. [N. C.] 122,) was the ease of an olograph will which had appended to it an attestation clause which was unsigned by witnesses, as in this case. The first objection urged against the will was that it contained an unsigned attestation clause, and it was claimed that the testator intended to make and publish it as an attested, and not as a olograph, will, and therefore it was never so completed as to operate as a will. This objection was overruled upon the authority of Harrison v. Burgess and Brown v. Beaver, supra. The court said r “ The declaration made by the decedent in the present case, that he wished to obtain the subscription of. witnesses to his will, though strengthened by an attestation clause, cannot be of more avail against its validity than was the actual attestation in the cases referred to.”
By the statute in that State an olograph will is required to be in the handwriting of such deceased person, with his name subscribed thereto, or inserted in some part of such will, and the will shall be proved by three credible witnesses to be entirely in his handwriting, (Rev. Code N. C., ch. 119, § 1, p. 606,) and when these and other requisites of the statute, as to deposit, etc., have been complied with, such wills have been sustained, notwithstanding the design may have existed in the testator’s mind to go further and have it witnessed, and this upon the ground that all had been done which the statute required to be done, and that more could not lawfully be required.
In the case of Devecmon v. Devecmon, 43 Md., 335, decided in the court of appeals of Maryland in 1875, the will contained an unsigned attestation clause, and purported to devise both real and personal estate. The incompleteness of the will, in that the attestation clause was not signed, was held to raise a presumption against it, and that this presumption was strength
In the case of Plater v Groome, 3 Md., 134, the court said: “ When a paper is unfinished, the presumption of law is strong against it; and if there be added to the paper the attestation clause, and the names of the witnesses be omitted, and the signature of the testator be wanting, and the blanks remain unfilled, these circumstances will raise a presumption that the deceased had either abandoned his intention of executing the instrument or that he never fully made up his mind on the subject.” These cases, and all- similar cases, are widely different from this case, and are readily distinguished. They are cases where something essential remained to be done. In a case where a will purports to devise real and personal estate, and the will is incomplete, imperfected, so as to devise both, the fact that all has been done which is necessary to pass one species of property does not disturb the presumption against the finality of the intention. It is, nevertheless, an incomplete instrument. The finality of intention applies to the will, not to any particular species of property devised. The intention not appearing in such case upon the face of the will, the paper is insufficient, standing alone.
But if the question to be determined is as to the finality of intention, what presumption of this sort could a court discover when the whole will, standing alone, and considered as a whole, indicated and exhibited a complete achievement of every purpose manifested therein; and so the same court which decided the case of Devecmon v. Devecmon had already rendered a deci
The learned counsel for the appellees cites numerous authorities to support the decision of the circuit court in this case. Of them, so far as they have not already been considered, we will say that they do not apply to this will'. Judge Tucker is referred to as saying: “In like manner, the completion of the declaration of the testator’s intentions must sufficiently appear, or the. instrument sought to he established will not be sustained”; and after speaking of the presumption raised by an unattested attestation clause, and other circumstances, he says: “And of all this the reasons are obvious, since as long as the testator leaves incompleted what he contemplates to complete by a further act, he himself cannot look upon the act as final. If, with power to complete it, he fails to do so, we have the most irresistible evidence that his mind had not finally de
In all these, and such similar cases as we have examined, the ground was taken that the conclusion of finality was excluded when the paper appeared to be unfinished. When this was
The codicil is such a paper, under the proofs, in this case stated above, as must be admitted to probate. Its testamentary character is unquestionable. It is dated the same day the will is, and is on different colored piaper; but it cannot be from this determined that it was written before the will. It is evidently intended as a codicil, and was so preserved with the will.
"We think the circuit court of Albemarle erred in rejecting the first instruction of the plaintiff, and in giving the first instruction given by the court; and for that error its judgment appealed from here will be reversed and annulled, and the case remanded for a new trial, to be had therein in accordance with the foregoing views. This disposes of, and includes all the questions raised on the trial which remain of any importance in the case, and the remaining questions will not be reviewed in this court.
Dissenting Opinion
dissenting, said:
I dissent from the opinion of the court in this case. In my judgment, the law was rightly propounded to the jury by the circuit court in relation to the effect of the unsigned attestation clause at the foot of the paper, designated in the record as
This view, though at first blush plausible, is not sound. The real question, I take it, is not merely whether the requirements of the .statute have been fully complied with, but whether the deceased had done everything that in his apprehension of the paper in question it was necessary to do, or that he intended to do, or to have done, before completing it,as his will. And the presumption arising from the unsigned attestation clause is, that he did not regard it as a completed instrument, or as a final and concluded act. This is a well-settled rule relating to wills, if judicial decisions, almost without number, can settle anything. The law upon the subject is well stated by an eminent author as follows: “ An attestation clause [annexed to a will] without witnesses makes the paper an unfinished instrument, even where it is signed by the testator, and the presumption of law is against such papers, even where the attestation by .witnesses is not indispensable, and when offered for probate it must be rebutted.” Redfield, Wills, 213, note 29. See also 1 Wms., Ex’ors, marg. p. 84; 1 Jarman, Wills, 244; 1 Tuck., Comm., 385-6.
In Beatty v. Beatty, 1 Adams’ Reports, 154, a case often cited, and which, I think, is not.only applicable to, hut is conclusive of, the question before us, Sir John Niekoll, in delivering judgment, said: “The paper-propounded would he clearly entitled to probate but for the attestation clause. It is all in the deceased’s handwriting; it is signed and dated; it appoints an executrix; it is a complete disposition of personal property, and the deceased had no real estate to suggest to him the necessity of executing his will in the presence of witnesses.
The English cases to the same effect are numerous. Many of them are cited by the text-writers on the subject, and need not be particularly referred to here. Nor have I been able to find, after diligent search, any case decided in England, before our revolution, in which the contrary has been held. It was asserted in the argument at the bar, that there were such decisions, but not one was cited, nor are any cited by the court in Watts v. Public adm’r, 4 Wend., 168—a case much relied on by the appellants—though the chief justice who delivered the opinion seemed to think there were such cases. The learned and elaborate opinion of Chancellor Walworth, from whose decision the appeal in that case was taken, and which is reported in 1 Paige, 347, is, to my mind, conclusive upon th.e point. Besides, the decision .of the case in 4th Wendell, proceeded on the ground that the presumption against the paper propounded as a will, was rebutted by the evidence.
Much reliance was also placed in the argument upon the case of Brown v. Tilden, 5 Harr. & J., 371. The facts of that case were peculiar, and of it it was said by the court of appeals
I am of opinion that it is equally - applicable here, as a part of the law of Virginia; for while the statute permits a holograph will to be made without the necessity for attestation by witnesses, it does not prohibit the making of an attested will, and, therefore, it seems to me the same presumption arises of a want of a final testamentary intent- in respect to a paper like the one in question, .as was held to arise in the case of Beatty v. Beatty. An attestation by witnesses was no more required by the English statute to make the paper propounded in that case a valid will of personalty, than our statute requires a holograph will to be attested by witnesses, and yet it was held that the unsigned attestation clause in that case gave rise to a presumption against the paper as a will, which was not rebutted by the evidence adduced.
Indeed, it seems to me that this view has been substantially adopted by this court as a sound legal principle, in the ease of Waller v. Waller, 1 Gratt., 465, as that decision was explained in Ramsey v. Ramsey, 13 Gratt., 664. In the first-mentioned case, Judge Baldwin concurred in the opinion of Judge Allen, while Judge Stanard concurred in reversing the judgment, without concurring in Judge Allen’s opinion, and Judge Brooke dissented. So that Judge Allen’s opinion was not the opinion of the court. Cabell, P., gave an opinion of his own, in which he held that the paper propounded in that case could not be regarded as a final and concluded act, not alone because of the fact that it was not signed, hut also because it was not acknowledged in the presence of witnessess. The paper was wholly in the handwriting of the deceased, and purported to
Signed and acknowledged in the presence of-.”
Judge Cabell said the paper bore evidence on its face that the decedent did not regard it as a final and concluded act; that he intended something further to be done, namely, that it should be signed and achnoiuledged to be his will in the presence of witnesses, and upon this ground he concurred in reversing the judgment of the lower court admitting the paper to record. And in Ramsey v. Ramsey, it was said by Judge Daniel, in whose opinion Judge Allen and the whole court concurred, that the decision in Waller v. Waller cannot be held as declaring any principle broader than that announced in the opinion of Judge Cabell, a principle, it seems to me, in harmony not only with the ruling of the circuit court in the present case, and with the decision in Beatty v. Beatty and a long line of like decisions, but with common sense as well.
It seems somehow, to be supposed, moreover, that a question of revocation arises in the case, and much has been said upon that point. To my mind all this is irrelevant. The question here is not whether a will has been revoked, but whether a will has been made; and I will only add in this connection, that the presumption above mentioned in respect to the paper in question, instead of being rebutted, is strengthened by the evidence in the case;
As to the paper designated as Ho. 2,1 will say only a few words. It was executed on the same day with paper Uo. 1, and is as follows: “ I do not charge any of my children with any thing I may have given them before my death. The $1,000 for my daughter, Mary, is to be paid to her, and then she is to have equal of the balance. (Signed) J. "W. Jones, May 14th, 1862.” I am satisfied from the record that this paper preceded the writing of paper Uo. 1, and was intended as a memorandum merely, though many years afterwards
Many other important questions were discussed in the argument at the bar, hut as the court has not found it necessary to pass upon them, I make no allusion to them. I think the opinion just delivered is contrary to the settled law, as it is laid down by all the text-writers, and as it has been expounded by the courts, and I respectfully, hut most emphatically, dissent from its conclusions.
Judgment reversed.
Concurrence Opinion
concurred in the opinion of Lacy, J.