Warwick v. Warwick

• Decision Date: 30 January 1890
• Citation: 86 Va. 596,10 S.E. 843
• Parties: Warwick v. Warwick et al.
• Court: Virginia Supreme Court

10 S.E. 843

(86 Va. 596)

Warwick

v.Warwick et al.

Supreme Court of Appeals of Virginia.

Jan. 30, 1890.

Wills—Signature.

A will written wholly in the handwriting of the testator, beginning, "I, A. W., of the county of H., declare this to be my last will and testament, " but nowhere else containing testator's name, and inclosed in a sealed envelope, on which was written, in testator's handwriting, "My Will— A. W., " is not signed by testator, within Code Va. 1887, § 2514, providing that "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 his signature."

Tucker & Ingram, for appellant. Pegram & Stringfellow, for appellees.

Lacy. J. This is an appeal from a decree of the circuit court of Henrico county, rendered on the 12th day of November, 1889. The case is a contest concerning the alleged will of Abraham Warwick, Jr. The said will was in writing, written wholly in the handwriting of the said Abraham Warwick, Jr., beginning with the words, "I, Abraham Warwick, Jr., of the county of Henrico, declare this to be my last will and testament, "etc., butdid not otherwise contain the signature or the name of the said Abraham Warwick, Jr., and was folded and inclosed in an envelope found in the desk of the said alleged testator, which was sealed with mucilage, and on the back of the envelope was written, also in the handwriting of the said Warwick, the following: "My Will—Abraham Warwick Jr." It is admitted that the said Warwick was a man of sound mind, and there is no dispute concerning the construction of the said testamentary paper. The contest was upon the question as to the due execution of the said contested will.

The appellees, two of the next of kin and heirs at law and distributees of the said Abraham Warwick, Jr., deceased, filed their bill in the said circuit court of Henrico, claiming that the said Warwick died intestate, and that the said testamentary paper, which had been probated in the county court, was not the will of the said decedent, the same not having been signed by the supposed testator (although written wholly in his hand writing) in such manner as to make it manifest that the name is intended as a signature. The case was tried in the said circuit court, and the said will pronounced invalid, for the reason that, while wholly in the handwriting of the decedent, it was not signed in such a manner as to make it manifest that the name was intended as a signature. From this decree the appellant appealed. The sole question to be considered here is as to the due execution of the said will as prescribed by law. Section 2514 of the Code of Virginia provides 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." The will in this case was wholly written in the handwriting of the testator. No witnesses were therefore necessary, and none have subscribed the paper in question. So that, the capacity of the testator being conced ed, the only question is as to whether the will is signed in manner required by law. We have seen that there is no signature appended to the will, nor does the name of the testator appear to the will, except at the top, and in the manner stated, the will commencing: "I, Abraham Warwick, Jr., of the county of Henrico, declare this to be my last will and testament, " etc.

It is insisted by the learned counsel for the appellant that the name appearing thus at the top of the will, and the will being folded and inclosed in an envelope, which was sealed and indorsed, "My Will —Abraham Warwick, Jr., "it is thus made manifest that the signature was intended to be his signature, and they, at the trial, moved the court to instruct the jury "that if they believe from the evidence that the paper writing produced before them, dated January 13, 1888, and the indorsement on the envelope, and the signature to said indorsement, are wholly in the handwriting of the testator, then they shall find that the said paper writing, and the indorsement on said envelope, and the signature to said indorsement, constitute the last will and testament of Abraham Warwick, Jr., if the jury shall be-lieve that the said Abraham Warwick, Jr., was, at the time of executing the said writ-ing, of sound mind;" and insisted, in support of these instructions, that the signature in the beginning of the said will was a sufficient signing, the final intention of the said testator that this paper should operate as his last will being proved by the facts that it was inclosed in a sealed envelope, and by the ratifying and confirmatory words, " My Will—Abraham Warwick, Jr., " on the back of said envelope. But the court refused the said instruction, and gave the following: " The court instructs the jury that, even if they believe from the evidence that the paper writing produced before them, dated the 13th day of January, 1888, and the indorsement, in the words, ' My Will—Abraham Warwick, Jr., ' upon the envelope in which the said writing was inclosed, was wholly in the handwriting of said Abraham Warwick, Jr., deceased, they must nevertheless find that the said paper is not of itself, nor is any part thereof, the true and valid last will and testament of said Abraham Warwick, Jr., because it is an unusual mode of signing or authenticating a will as a concluded act by indorsing the name of a person executing and making it on the envelope in which it is inclosed; and, such indorsement being at most equivocal, it does not...