Pilcher v. Pilcher , 117 Va. 356 ( 1915 )

Whittle, J.

(after making the foregoing statement), delivered the opinion of the court.

Stripped of immaterialities, the dominant question presented by this record for our decision is the validity of a holograph will, at the end of which the writer, to authenticate the paper, has attached his initials by way of signature, instead of his full name. At the outset it is conceded that the precise question is of first impression in this jurisdiction, though affirmative precedent for the proposition is not lacking elsewhere. The circumstance is stressed by counsel for plaintiff in error that in McBride v. McBride, 26 Gratt. (67 Va.) 476, Judge Staples, who delivered the opinion of the court, expressed doubt whether signing a holograph will with the initials of .the testator’s name constituted a sufficient signing. In that case, McBride had caused the draft of a will to be prepared by his attorney, with the terms of which he had expressed his approval, but postponed its execution until he could secure two particular persons to act as subscribing witnesses. A few days later he wrote a letter to his brother in Texas, informing him of his domestic troubles, and assigning reasons for wishing to disinherit a certain child. After directing his brother to burn the letter, he concluded as follows : “I don’t know where to direct this letter, and don’t like much to send it on uncertainties, and will not sign it. You know who it is from if you get-,” and signed the letter, “J.,” an initial of his Christian name. Two months after reading the draft of the proposed will, McBride was accidentally killed, not having executed the paper. The court held that the letter was not a testamentary paper, either alone or as connected with the draft of the will.

It is obvious that no other conclusion could have been reached on those facts. The proposed will was never signed; and the fact that McBride did not intend the initial “J.” as a signing of the letter conclusively appears on its face. He directed his brother to burn the letter, and expressly declared that he would not sign it, and did not wish •to be identified with the paper in any way. The learned judge, in discussing the question of signing by “initials,” at page 487, observes: “In determining whether this letter constitutes a valid testamentary act, there is one other view which ought not to be omitted. It has been held in England that a will is valid if signed with the initials of the testator’s name, or even his mark, without any signature. It must be borne in mind, however, that under the- English statute every will, even though written wholly by the testator, must be attested by witnesses. When, therefore, in England, an initial is used only, the attestation of the witnesses very ' clearly indicates that the testator designed that this form of signature should be a signing. Under our statute, an autograph will is valid without witnesses. Whether we can recognize an initial as sufficient, to the same extent as the English courts, may not be so clear. Upon that question we express no opinion. Its decision is not necessary for any of the purposes of this case.”

The dictum of a lawyer of Judge Staples’ acknowledged ability and learning is entitled to, and certainly would receive from this court, most respectful consideration. But, Judge Staples not only expressed no opinion on the question, but explicitly declined to do so on the ground that it was not necessary for any of the purposes of that case. He does, however, refer to the fact that it is held in England “that a will is valid if signed with the initials of a testator’s name, or even his mark without any signature.” He also calls attention to the fact that the English statute requires attesting witnesses to holograph wills as well as others, and makes the suggestion that it may be the attestation of the subscribing witnesses that gives assurance that the use of initials was designed as a signature. But the English cases holding the initials of the testator to be a sufficient signature are not confined to instances where the names of attesting witnesses are written in full. The cases go further and hold that the signature of the testator by initials is sufficient, when the attesting witnesses also sign by initials.

Thus, in Goods of Blewett (1880), 5 Law Rep. Prob. Div., p. 116, the court said: “The only question then is, whether the signature and subscription by initials only are sufficient. A mark is sufficient, though the testator can write (Baker v. Dening, 8 Ad. & E. 94). Initials, if intended to represent the name, must be equally good. The language of the Lord Chancellor in Hindermarsh v. Charlton, 8 H. L. C. 160, at p. 167, seems equally applicable to the testator’s signature as to the witnesses’ subscription:’ T will lay down this as my notion of the law, that to make a valid subscription of a witness there must either be the name or some mark which is intended to represent the name’; and Lord Chelmsford says: ‘The subscription must mean such a signature as is descriptive of the witness, whether by mark or by initials, or by writing the name in full.’ ”

So, in Margary and Layard v. Robinson (1886), 12 Law Reports, Prob. Div., p. 8, where the signature of the testator was by mark and that of the attesting witnesses by initials, it was held that the signature of the testator and the subscription of the witnesses were sufficient.

Having noticed what is required by the English statute. of wills and the construction placed upon it by the courts of that country, let us turn now to our own statute, the correct interpretation of which, at last, must control the case in judgment.

Va. Code, 1904, sec. 2514, reads as follows: “No will shall be valid' unless it be in writing and signed by the testator, or by some other person in his presence and 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 will be observed that the statute makes no distinction in the character of the signature, or what constitutes a sufficient signature, between holograph and attested wills. It gives precisely the same force and effect to the former that it accords to the latter. By force of the statute one is made the equivalent of the other, though the manner of proving the two kinds of instruments is different; nevertheless, each possesses the same authenticity.

Now, all the authorities, English and American (including the quaere in McBride v. McBride) agree, that if this will had been attested, it would have been well signed under the English statute. Therefore, being holograph, it must follow that it is well signed under the Virginia statute, since that statute does not require attestation in such case.

Nor does the Virginia statute define what shall constitute a “signature,” but only prescribes that the will shall be signed “in such manner as to make it manifest that the name is intended as a signature.”

Webster’s New International Dictionary defines “signature” to be “A sign, stamp, or mark impressed, as by a seal * * * ” Also, “The name of any person, written in his own hand, to signify that the writing which precedes accords with his own wishes or intentions; a sign manual; an autograph.”

The Standard Dictionary defines it to be, “The name of a person, or something representing his name, written, stamped, or inscribed by himself, or by deputy * * * ”

No dictionary, so far as we are advised, restricts the meaning of “signature” to a written name; therefore, according to these definitions, what constitutes a signature must largely depend upon the circumstances of each particular case, though in all cases the intent is a vit,al factor. Whatever symbol is employed, it must appear that it “is intended as a signature.”

Although, as remarked, there is no decision of this court directly in point, authority in this country is abundant for the proposition that the use of his initials by a testator animo signandi is a sufficient signing of his name.

The discussion of the subject in Knox’s Appeal (1889), 131 Pa. 220, 18 Atl. 1021; 17 Am. St. Rep. 798, 6 L. R. A. 353, is instructive.' In that case a letter testamentary in character, in the handwriting of the deceased and signed by her with her Christian name only, whs held to be a valid will. And the court was of opinion that a will signed by the testator with his initials made a stronger case for upholding the instrument. It quotes with approval from Browne on the Statute of Frauds, sec. 362, as follows: “In cases where the initials only of the party are signed, it is quite clear that, with the aid of parol evidence which is admitted to apply to them, the signature is to be held valid.”

In 1 Jarman on Wills (6th Am. Ed.), 106-108, it is said:

“It has been decided that a mark is sufficient, notwithstanding the testator is able to write, and though his name does not appear on the face of the will. A mark being sufficient, of course the initials of the testator’s name would also suffice.”

The leading text-writers speak with one voice on the subject. Jarman on Wills, supra; Page on Wills, sec, 172; Schouler on Wills (3rd ed.), sec. 303; 1 Redfield on the Law of Wills (3rd ed.), pp. 203, 205; Rood on Wills, secs. 254, 255.

That testator’s signature by a mark is sufficient is well settled by the Virginia authorities. Smith v. Jones, 6 Ran. (27 Va.) 36; Clarke v. Dunnavant, 10 Leigh (37 Va.) 14; Rosser v. Franklin, 6 Gratt. (47 Va.) 1, 52 Am. Dec. 97; 3 Lomax’s Dig.. (2nd ed.), pp. 38, 70; 2 Minor on Real Property, sec. 1252; Long’s Notes on the Law of Wills (1910), p. 17.

Adverting for a moment to the facts: We have before us a paper which, though exceedingly brief, is distinctly testamentary in character and terms, and by which the disposition of the property, in the circumstances, was a natural one. Testator was a lawyer in full possession of his mental faculties, and there is no question that the paper was wholly written by him, and signed with his initials at the appropriaté place for his signature—the end of the instrument. Immediately before the paper was written, testator said to his wife and her sister, Mrs. Woods, “I am going to make my will,” and after it was written, holding the paper up, he said: “Girls, this is my will. I have left Allie everything I have.” In response to Mrs. Woods’ comment on, the brevity of the document, he remarked, “The shorter, the better.” When she called attention to the use of his initials, he replied, “Why, that is as good a will as any man can make; that will hold in any court—almost a mark will go, Belle.” He then said to Mrs. Woods, “I want you to preserve this. That is my will: I have left everything to Alice. I want you to see that she takes care of it.” This evidence, and it is uncontradicted, plainly establishes testamentary intent and that the initials were used animo signandi.

The decisions of this court hold that the position of the signature at the end of the will furnishes sufficient internal evidence of finality or completion of intent. Ramsey v. Ramsey, 13 Gratt. (54 Va.) 664, 70 Am. Dec. 438; Roy v. Roy, 16 Gratt. (51 Va.) 418, 419, 84 Am. Dec. 696; McBride v. McBride, 26 Gratt. (67 Va.) 476, 487; Dinning v. Dinning, 102 Va. 467, 469-470, 46 S. E. 473.

We entertain no doubt, either from the standpoint of reason or authority, that the writing in controversy was executed in substantial compliance with the statute, and, as the chancery court held, is the true last will and testament of Edwin Pilcher, deceased.

There are two other subordinate assignments of error which may be briefly noticed.

(1) The first involves the ruling of the trial court on the admissibility of certain testimony of Mrs. Pilcher, under section 3346-a, cl. (3) of the Code. The observations on that point by his honor, Judge Beverley T. Crump, who presided at the trial below, show a correct conception of the restrictive features of the statute. He sedulously safeguarded the admission of such communications between husband and wife as the statute was intended to protect, and confined the examination-of the wife strictly to matters with respect to which she was clearly a competent witness. The communications to the admission of which exception was taken were made in the presence of a third person, and in no just sense were either confidential or privileged.

(2) We attach no significance to the circumstance that some ten days after the first will was executed Mr. Pilcher prepared the draft of a more formal will. Admittedly he did not sign it, and the paper indicates no change of purpose on his part, since by the last paper, as by the first, he leaves all his property to his wife. Besides, Mrs. Pilcher, in response to the question on cross-examination, “ * * * can you tell the court what induced Mr. Pilcher to write the paper of December 26th, if he considered the first paper his will ?” answered: “I do not think he considered this’last paper he wrote as a will. He told me—” Mr. Bryan (the propounder of the question) : “I object.” Witness : “I do know what induced him to do it.” But, at that point, an objection was again interposed and sustained by the court.

It thus appears that the information was at hand, but was excluded on technical grounds. Whatever may have been the intention of the testator, however, in writing the second paper, it was never signed by him and could not have had the effect of revoking his will.

Upon the whole case, we are of opinion that the sentence of the chancery court is plainly right and must be affirmed.

Affirmed.