#### *Waller and Another v. Waller.*

March, 1845,

Richmond.

[42 Am. Dec. 564.]

1. Olographic Will—Signature.†—A will wholly in the handwriting of the testator commenced—“I, *J. W. of*the county of *H.*and state of *Va.,*calling to ' mind the uncertainty of human life, and "being *189desirous to dispose of all such estate as it hath pleased God to bless me with, I give and bequeath the same in manner following.” He then proceeded to dispose of the whole of his estate, real and personal, and concluded thus—“In witness whereof, I have hereunto set my hand, this day of 1841.

“Signed and acknowledged in presence of .” The blank for the date was not filled up, and the testator’s name was not subscribed to the paper, nor were there any attesting witnesses. Held, The will not well executed.

2. Parol Evidence‡-Finality of Intent.§—The finality of the testamentary intent must be ascertained from the face of the paper, and extrinsic evidence is not admissible, either to prove or disprove it.

3. Wills—Signing of|--Statute.—The signing a will, to be a sufficient signing under the statute, must be such as, upon the face, and from the frame of the instrument, appears to have been intended to give it authenticity. It must appear that the name written was regarded as a signature, and that the instrument was complete without farther signature, and the paper itself must shew this. Allen and Baldwin. J.

At the May term of the superior court of Henry county, for the year 1842, James Waller offered for probate a paper writing as the last will and testament of John Waller, deceased, which was contested by George Waller and John Cobb. The case came on to be heard at the October term of the court, when the paper was admitted to probate, and the contestants applied for, and obtained an appeal to this court.

The paper admitted to probate, commenced as follows—“In the name of God, amen, I, John Waller of the county of Henry and state of Virginia, calling to mind the uncertainty of human life, and being desirous to dispose of all such wordly estate as it hath pleased God to bless me with, I give and bequeath the same in '^manner following.” He then proceeded to dispose of his whole estate, real and personal, among his wife and children, and concluded thus—“In witness whereof, I have hereunto set my hand, this day of 1841.

“'Signed and acknowledged in the presence of .”

But the blank for the date was not filled up, and the testator’s name was not subscribed to the paper, nor were there any attesting witnesses.

Several witnesses proved that the paper was wholly in the handwriting of John Waller, and that he was alwa37s of sound and disposing mind and memory up to the morning of the day on which he died. A witness, John T. Wootten, stated that he was a connection of Waller, and lived within a few miles of him. That in the summer of 1841, he was at testator’s house, when testator produced the paper now offered for probate, and asked the witness if it was a good will,—witness told him it was, though some of the devises were awkwardly worded. Testator then told witness he wished him to come up in some short time and cop3r it, clothing it in witness’s own language, not altering any of the provisions. Previous to this time, witness had a conversation with testator concerning the will of one Reuben Payne, about which there had been much controversy, which will was in the handwriting of Payne: testator asked if it was signed, and witness told him it was.

*190The day before testator’s death, witness was at testator’s house, when he called on his wife for that paper, which being brought, testator opened the paper and handed it to witness, saying, “name sake, you have not done that writing for me, and further remarked, I want you to do it directly, for there is no time to be lost.” Witness asked him if he wanted it done then, and he saying yes, witness not finding any good paper and ink, said' he would take it home, copy, and bring it back that evening. Witness was detained at testator’s house until evening, and did not get back with the paper which he *had prepared until next morning, when he found the testator too far gone to execute it.

Witness had written several wills for the testator before the paper now offered for probate was shewn him, as before stated, and testator telling him he wanted him to write another will for him, and appearing to desire secrecy, witness told him he had better write one himself, if he wanted secrecy, and that would supersede the necessity of witnesses. This was before the paper now offered for probate was written. Some time before this, testator told witness he feared disputes amongst his family, and wanted a will prepared that there could be no dispute about it; and he told witness, on several occasions, that he wanted witness to prepare a will about which there could be no dispute.

Howard, for the appellants.

The paper which has been admitted to record in the court below, both upon its face and upon the testimony in the cause, is fatally defective in point of execution.

I. It is not duly signed according to the requisitions of xthe statute; the testator’s name or mark not being subscribed thereto.

No case, it is believed, has hitherto occurred in which this court has had occasion to consider the case of Lemayne v. Stanley, 3 Levintz 1. In Bailey & wife v. Teacle, 4 Wythe’s Rep. 8, chancellor Wythe seems to have followed the case as an authority, and the general court, in Selden &c. v. Coalter &c., 2 Va. Cas. 553, consider it as giving the law on the subject, on the ground that having been decided previous to the passage of our act adopting the 29 Charles 2, our legislature must be presumed to have adopted the construction with the act. It is submitted that this ground of decision is to be assumed with great caution, as is exemplified by the subject now under consideration. In this case of Lemayne v. Stanley, the court held that a sealing was a sufficient ^signing under the statute of 29 Charles 2. This doctrine was acted on, or recognized in the cases of Lee v. Bibb, 1 Shower 69; Warneford v. Warneford, 2 Strange 764, and Gryle v. Gryle, 2 Atk. 176. Such was the construction of this statute of 29 Charles 2, when it was adopted into our code, and if the construction was adopted with the statute, then sealing, is a good signing in Virginia at this day, though it has ceased to be so in England for the last ninety years. Sugden on Powers, ch. 6, *§*3, p. 267, note. Powell on Devises, by Jarmyn, p. 79, note 2.

The decision in Lemayne v. Stanley, has been regretted and disapproved by Roberts in his work on Wills, ch. 1, *§*11, p. 94, and Powell on Devises, Jarmyn’s edi. vol. 1, ch. 4, p. 76, and upon principle it is unsatisfactory, as it necessarily lets in extraneous testimony to ascertain the intent of the testator' in signing, which would be wholly unnecessary if the signing is required to be at the foot of the writing. Eor although the ingenuity of courts and counsel, have been often exerted in speculating how much less than that might satisfj7 the statute, it has never been conceived that more could-ever be necessary. Shall this case be followed as an authority at this day in this court, where it has never been acted on or sanctioned, when we see that in England, where it was the rule of the court for more than a hundred years, an experience of its evils has induced parliament to change it? 1 Vict. ch. 26, § 9.

But whatever may be the authority of Eemayne v. Stanley, in a case of like circumstances, shewing that the will was complete in the estimation of the testator, yet it has been clearly held that where the testator intended a further act of signing, an act additional to that of writing his name in the commencement of the will, the name so written cannot be regarded as a sufficient compliance with the requisitions of the statute. Right v. Price, Dougl. 241, recognized in Winsor v. Pratt, 2 *Brod. & Bing. 650; 6 Eng. C. L. Rep. 302, and Pearson v. Wightman, 1 Reports of Const. Ct. of South Ca. p. 336. In the case of Right v. Price, it appeared from extrinsic evidence that the ' testator intended a further act of signature. In the case before the court the same fact appears from the face of the instrument.

The English statute requires attesting witnesses to every will of lands, and the publication before the witnesses is necessarily the final solemnity on the part of the testator, and conclusive of his settled testamentary intent. A liberal construction of that statute in respect to signature, is therefore less hazardous than would be a similar construction of our own, and especially in relation to unattested wills. Evidence in favour of a will not subscribed or attested, must in general refer to declarations of the deceased respecting the testamentary dispostions he has made, or intends to make, or to his manner of speaking of the instrument as complete or otherwise. Such evidence is obviously weak in its very nature. And the authorities clearly shew that terms importing completeness used by the testator in speaking of the instrument, are of no moment when opposed to evidence of incompleteness, whether that evidence be on the face of the paper or derived from extrinsic sources. The want of subscription was considered a material circumstance in the case of Selden &c. v. Coalter *191&c. And in Sharp v. Sharp &c., 2 Leigh 249, it seemed to be considered, at least by some of the judges, that the signing at the foot of an olograph will of lands would be necessary, as without it there would be no sufficient evidence of a concluded and final act.

II. The will is unfinished in respect to date, blanks being left for the day and month. The omission of the date was one of the circumstances on which the general court grounded their rejection of the will in Selden v. Coalter. And in Rymes v. Clarkson, 1 Eng. Eccl. Rep. 26, sir John Nichol held, “that upon the enquiry, *whether the paper is finished or incomplete, the want of date or signature is exceedingly important.” In both these cases the omission of the date was total. But when a date is partially set out as in the case before the court, the evidence of incompleteness is much stronger. Opinion of Buchanan, J., in Tilghman v. Stewart, 4 Har. & John. 173.

III. The paper has a clause of attestation, but there are no subscribing witnesses. The case of Tilghman v. Stewart, is an authority upon this point also. In Scott v. Rhodes, 1 Eng. Eccl. Rep. 18, sir John Hichol says—'“All these testamentary acts” (he is speaking of papers not propounded,) “serve strongly to point out what were the testamentary intentions of the deceased up to August 1807; and as far as evidence of this sort can go, they do most forcibly support the instrument propounded. But evidence of this sort, however strong, is not sufficient. The paper propounded was manifestly intended to be executed by being subscribed, and to be attested by witnesses. And however clear the proof may be, that at the time the deceased wrote this paper, he intended so to dispose of his property by will, yet it being equally clear that in order to give effect to the instrument, he intended to do the further act of signing in the presence of witnesses, the law requires it to be shewn why the farther act was not done.” In Beatty v. Beatty, 2 Eng. Eccl. Rep. 62, the same judge said, that the paper propounded would have been “clearly entitled to probate but for the attestation clause that “the presumption of law is against a testamentary paper with an attestation clause not subscribed by witnesses, where the testator is not proved to have been prevented by any act of God from going on to complete it, had he so intended;” and “that the presumption must be rebutted by some extrinsic evidence of the testator intending the instrument to operate in its subsisting state.” And the court is particularly referred to the case of *Walker v. Walker, 1 Merivale 503, and the cases there cited, and to the cases of Matthews v. Warner, 4 Ves. 187, and Munro v. Coutts, 1 Dow’s Parl. Cas. 437.

That a will of lands must be the identical instrument which the testator intended to operate as such, without any farther act done to give it authority or validity, is laid down in explicit terms by judge Roane in Cogbill v. Cogbill &c., 2 Hen. & Munf. 510, and is fully recognized in Sharp v. Sharp &c., 2 Leigh 249. It is obvious, that of the cases before referred to, all those upon wills of both real and personal estate, or of personal estate only, (which express or involve the same proposition,) must apply a fortiori to the present will, which is wholly statutory. See judge Roane’s opinion above referred to, p. 510, 518, and 2 Va. Cas. 598. And it is submitted they apply without the qualification to be found stated, in some of them, on account of what is termed “the act of God,” in the shape of sickness or sudden death. The case of Right v. Price, Dougl. 241, is utterly repugnant to any such qualification; and it is believed that no case can be found in England or Virginia in which the act of God was even suggested to be a proper subject of consideration, where the question was whether a statutory will had been duly executed. The cases of Scott v. Rhodes, 1 Eng. Eccl. Rep. 15, and Allen v. Manning, 2 Id. 390, were cases in which the act of God was applied to cure defects of execution in the will. Griffin v. Griffin, 4 Ves. 197, note (a.); Munro v. Coutts, 1 Dow’s Parl. Cas. 437, and Roose v. Moulsdale, 2 Eng. Eccl. Rep. 48, were cases in which it was held this doctrine did not apply. An examination of the principle on which these cases turned, will shew that the case under consideration does not come within its scope, and cannot be controlled by.it.

Apply the principles to be reduced from the cases referred to, to this paper, and whether we look to the paper alone, wanting as it does a signing at the foot, and a Mate, and having an attestation clause, without attesting witnesses, or whether we look to the paper in connection with the evidence, it must be manifest that it is not so executed as to make it the last will and testament of John Waller.

Seddon and Reynolds, for the appellee.

The question for the consideration of the court is, whether the paper admitted to probate as the will of John Waller, has been duly executed. This question arises under our statute of wills, 1 Rev. Code ch. 104, § 1, p. 375, and the act of 1840, Sessions Acts p. 50.* Under these laws, wills may be executed in two modes, one bj' the attestation of witnesses, the other by being written wholly by the testator. The present case is of the latter class.

The provisions of our law in relation to olograph wills, is wholly unknown to the common or statute law of England. They were introduced into our law by the act of 1748, 5 Hen. Stat. at large 456. The language of this statute makes the writing the paper wholly by the testator, tantamount to attestation by witnesses. This statute was re-enacted in 1785, 12 Hen. Stat. at large 140, in language very nearly the same as that of the act of 1819, and the act still places the two kinds of execution upon the same footing.

*192To constitute a good testamentary disposition, there must be a last will and testament in writing, and signed by the testator. The formalities of the law are writing and signing, and when these are united with final testamentary intent, the instrument is a valid will.

In this case the will is in writing, and the only question remaining as to the mode of executing the paper, is the signing. Is the signing of the name of the testator to this paper sufficient? The sufficiency of the signature to this paper is not to be determined by the ordinary understanding of the country as to the meaning *of the word “signed,” but by the principles which have been settled by the courts. The leading case on this question is that of Eemayne v. Stanley, 3 Eevintz 1. And this case was followed soon afterwards by the case of Hilton v. King, Id. 36. The first of these cases decided upon the statute of 29 Charles 2, soon after its passage, held that a signing in the commencement of the will was sufficient; and that case has been considered as giving the law of the subject from that time to the present, and not only no decision, but no dictum, of any court, either in England or America, has been produced ■which questions the law as settled by that case.

The construction given in Eemayne v. Stanley', to the meaning of the word “signed,” has been followed in the decisions upon other clauses of the statute of frauds. In Stokes v. Moore & wife, 1 Cox’s Cases 219, cited in 1 Piere Wms. 771, in note, it was held that the name must be so written as to give authenticity to the instrument, and in that case it being in the body of the instrument, it was referred to a particular provision of the instrument. In Welford v. Beazeley, 3 Atk. 503, the subscribing as a witness was held a sufficient signing. In Simon v. Motivos, 3 Burr. 1921, the signing by an auctioneer of the purchaser’s name was held sufficient, and such has since been held to be the settled law. In Coles v. Trecothick, 9 Ves. 246, lord Eldon refers to the law as to the signing of wills as settled; and to the same effect are Tawney v. Crowther, 3 Brown’s C. C. 161, 318; 6 Ves. 713.

The law being thus fully settled in England, and so settled at the time" of the passage of our act of 1748, the enquiry arises, whether it has been changed in Virginia. Here is a statute adopted from the English code, which there had received a settled construction, was known to express a specific meaning, and with this knowledge the language of the British statute is adopted. Can there be any doubt as to what the legislature *meant by their act, or, of the propriety' of the rule so frequently recognized and acted on by our courts, that the construction given to the statute in England, is to be considered as the correct construction here? To suppose otherwise, is to suppose that the legislature has intentionally used language, with a full knowledge that it was understood and had been decided by wise and learned men to mean what they did not intend by it. To make such a supposition, would evince a contempt for the legislative understanding which no court could express with propriety. And accordingly, judge *Wythe, in*Bailey and wife v. Teacle, Wythe’s Rep. 8, and all the judges in Selden v. Coalter & others, 2 Va. Cas. 553, fully recognized the authority of the case of Eemay'ne v. Stanley, and the doctrine as there laid down. This doctrine may, therefore, be considered as settled.

Taking the doctrine in Eemayne v. Stanley to be settled in its application to attested wills, the question then arises, whether the rule in relation to signing an olograph will can be different. The question here is not, whether words of similar import shall be construed to mean the same, nor even whether the same word, used in different sections of the same law, shall have the same meaning in both sections, but whether the word at the same time applied to both kinds of wills, shall have, when read in reference to one of them, one meaning, and when read in reference to the other, shall have another and a different construction. The provision or the structure of the language of the statute gives not only no ground for any such different construction, but is opposed to it; as the provision for attestation, where the will is not an olograph, is merely an additional provision attached to that class of wills.

It being established that a signing in the beginning of a will, is a legal signing, can any qualification of the intent specially applicable to that, and not included in the idea of general testamentary intent, be superadded ^before the signing is sufficient? Every man is presumed to intend the natural or legal consequences of his acts: and to allow proof to shew the purpose for which the signature was placed there, is to allow proof to shew that the party did not intend to do what the law says he did intend. It is admitted that, if the paper had been subscribed, no parol proof would be admissible to shew that it was not intended to be the signature of the testator. But when it is once established that a signature at the commencement of the paper, is a signing within the meaning of the statute, it is impossible to divine a reason for the conclusiveness of the one, which will not equally apply to establish the conclusiveness of the other. .The only case which seems to encourage the idea, that any enquiry is open as to the intent with which the paper is signed, is the case of Right v. Price, Dougl. 241. But the decision in that case was on another and a different ground, and it cannot, therefore, be considered as an authority ruling the question. If, however, the opinion as to the signature be regarded, it only extends to a case where the signature is not applicable to the whole instrument; and, therefore, can have no influence on this case, where the signature equally applies to the whole of the paper, and even an intent to *193make another signature would not affect the validity of the instrument, if there is a signing sufficient to meet the requisitions of the statute. Winsor v. Pratt, 6 Eng. C. L. Rep. 302.

Upon principle it may be well questioned, whether finality of testamentary intent should not necessarily be inferred from a sufficient signing of the instrument. On this subject, the court is referred to the reasoning of judge Daniel in the case of Selden v. Coalter. One great object of the statute, seems to be to exclude parol evidence from these enquiries, and this object is defeated, if the court is to look beyond the face of the instrument to ascertain whether the instrument is completely *and legally executed. It seems, however, to have been permitted that notwithstanding the formal execution of the paper, the question of final intent to make that the last will and testament, might be raised. But where the requisitions of the statute have been complied with, they will go far to shew that there was such intent.

Upon this question of final intent, there could at any time be no just distinction between wills of personalty and realty. The definition of both is the same. Formalities are required in the execution of either, though these formalities were more numerous in wills of realty. The change in our statute, therefore, makes no real difference in the principles applicable to this enquiry. Judge Daniel, in the opinion before referred to, shews very clearly that what is required to make a will of personalty must be proved with as much certainty, as must the requisites in regard to a will of realty, when that is the subject of enquiry. Nor can any difference exist as to the proof of the identity of the paper with that intended. In either case, it is not necessary that the paper should have been signed as a last will, but the enquiry is, whether the testator has so executed the paper as to meet the requisitions of the law, and whether it contains his last intentions. Roane, J., in Cogbill v. Cogbill.

Our olograph wills are like notes of wills, where it is held that the particular paper need not have been contemplated as a will. In Rochelle v. Rochelle, 10 Leigh 141, Tucker, president, considers this subject, and from his remarks, it may be inferred that he thinks there is no difference in this respect between a will of realty and personalty. The case of Sharp v. Sharp, 2 Leigh 249, illustrates this as regards olograph wills.

The present will is more final and complete than any ever rejected by the courts, its only defect consisting in the failure to do what was surplusage—in omitting to ^'complete forms the law holds useless. It is full and complete in its provisions, formal throughout, called both in the paper his last will, and in conversation his good and sufficient will, appoints executors and shews fullness of intent by the word “lastly.” Is made after a conversation ascertaining the requisites of a will, is shewn as such and approved except as to form. Nothing more as to that will is contemplated or intended, though another more formal was to be drawn. The intent is carried down to the period of testator’s death, and the act of God alone prevented the execution of the paper directed to be prepared—a paper not to add to the existing paper, but to be a mere duplicate of it, adding formalities wholly unnecessary. Can a case be found in the whole range of English or Virginia authorities, where a will characterized as this is, has ever been set aside? Contrast it with the will established in Cogbill v. Cogbill, and Sharp v. Sharp. Compare it with the English cases, Haberfield v. Bonney, cited 4 Ves. 200; Green v. Skipwith, 1 Eccl. Rep. 22; Wood V. Wood, Id. 101; Huntington v. Huntington, Id. 234; Allen v. Manning, 2 Id. 390; Burrows v. Burrows, 3 Id. 49; Robinson v. Chamberlayne, 6 Id. 65; Moore v. Hacket, Id. 74; Barwick v. Mullings, 4 Id. 98, and it will be seen that it is infinitely stronger than many cases which have been established.

The cases referred to by the counsel on the other side, are generally cases in which the paper was a mere scheme of a will not intended as a will of itself, but as a memorandum from which a will was to be drawn, evincing no testamentary intent as connected with that paper, and having no features of finality.

In conclusion, we refer the court to the case of Watts &c. v. The Public adm’r &c., 4 Wend. 168, as an authority sustaining the propositions for which we contend throughout.

*Robinson, for the appellants.

The statute has declared, that a writing shall not be valid as a will unless it be signed by the decedent. The writing propounded has never been subscribed, and there is intrinsic evidence that if a complete and formal act it would have been subscribed. It concludes, “In witness whereof, I have hereunto set my hand.” No one imagines that when the deceased used this language, he referred to his name in the commencement of the paper. It must be admitted that he referred to a signature to be put at the end. It contains also intrinsic evidence that the deceased was not willing to authenticate it by signing, at the time it was written, but intentional^postponed that authentication to a future time: for he has left a blank for the time of signing. This surely would not have been, if he had considered what he had done as a signing. There could, in that case, have been no difficulty on his part in dating the paper. It is only by supposing that he contemplated a future signing, and meant the paper to bear date at the time of that signing, that we can account for a blank being left for the date. And yet it is insisted that this paper is signed, and is a complete and final testamentary act. Both of these propositions must be sustained, to entitle this paper to be admitted *194to probate. On our part it is insisted that each of them is untenable.

1. Is the paper signed? What meaning is conveyed by this word “signed?” This question is well answered in Powell on Devises, 76, and Roberts on Frauds, 381. But it is said, the courts have given a construction to this word, and that we must be governed thereby. It becomes necessary, therefore, to examine into the nature of the decision in Bemayne v. Stanley, and the circumstances attending it.

The paper in that case was not only wholly in the handwriting of the deceased, with his name in the commencement of it, but there was a seal at the end of it, and there were three subscribing witnesses: and it appears *from the report in 3 Levintz 1, that three of the four judges were of opinion that the putting the seal was of itself a sufficient signing within the statute. This case is also reported in Freeman, 538, where it is stated that the deceased put his seal to the paper in the presence of the witnesses, and this was insisted as a sufficient signing, and the decision is put not only on the ground that the name was in the commencement of the paper, but also that it is not necessary to write his name, but that a mark is sufficient.

The proposition that sealing a will is signing within the statute, was expressly ruled in Warneford v. Warneford, 2 Strange 764, and as a mark is a sufficient signing, even though the deceased could write, (Baker v. Dening &c., 35 Eng. C. B. Rep. 335,) it would seem that the decision is correct, as the form of the mark cannot be of any importance: but whether in the form of a cross or a seal, there must be something to shew that it was intended as a signing, which in . Bemayne v. Stanley, was shewn by the three subscribing witnesses, who proved the seal was set in their presence. But in the present case, there is at the end no scroll or mark of any kind, and if without such scroll or mark a name in the commencement of the paper will serve as a signature, it can only serve as such when so intended, and here there are no witnesses or anything on the face of the paper to evidence that intention.

To sustain the paper here propounded, the court must go far beyond Bemayne v. Stanley. There, it is obvious, the testator supposed the paper to be complete, and acknowledged it as - such before witnesses. Here it is impossible to say, from the frame of the paper, that the deceased did not intend to put a further signature to it. On the contrary, it is manifest he did not suppose it to be complete until he did put such signature.

If the name in the commencement of this paper is a sufficient signature, then it must be held that a name *thus placed will always be a signature of whatever is written after it, whether so intended or not, a proposition which cannot need a refutation, though the case of Hilton v. King illustrates its consequences. That was a case of revocation written under a will upon the same paper. There was a signing at the bottom of the will, but none at the bottom of the revocation, though it had been written by the direction of the testator, and subscribed by the witnesses in his presence. On the first argument, two of the judges thought that the signature to the will was a signature to the revocation, but it was afterwards ruled otherwise in the absence of the two judges.

The cases of Hilton v. King, and Blennerhassett v. Day, 2 B. & B. 104, shew most conclusively, that the opinion in Bemayne v. Stanley, that a signing in the commencement of the paper is good, is to be taken with the qualification that the name must be intended as a signature, and the paper be regarded as complete without farther signature. Nor is there anything in the decisions under the statute of frauds, wihch militates against this view. The language of chancellor Cowper in the earliest of the cases under that statute, (Bawdes v. Amhurst, Prec. in Ch. 402,) is strictly applicable to this case, and it may be said here, as he said there, that the not subscribing the paper is evidence that he did not think it complete, that he,had left it to after consideration, and might alter it. The true doctrine, both under the statute of wills and the statute concerning agreements, is that the name is not to be considered a signature unless it appears to have been intended as such, and then is only a signature as to so much of the paper as it was designed to authenticate. The case of Right v. Price exemplifies and. illustrates the rule.

The question in this case is, whether the court is to be governed by the mere fact, that the name in the commencement of the will in the case of Bemayne v. Stanley, *was deemed a sufficient signing, or is to be governed by the principle under which it was so held. There can be no doubt on that question; and that principle leads us to enquire, whether the writing of the name in the commencement of this will, was all the signing contemplated by the testator; and whether his mind was in no suspense, looking to no future or farther act of authentication. The answer to these enquiries cannot be in the affirmative. The paper manifests upon its face that the deceased did not consider it signed, until it should be perfected by a farther act, by filling up the date and setting his hand to it at the end. Until this is done the paper appears on its face but an inchoate will; and if in Right v. Price, there never was a signature of the whole will, because what was done was not so intended, it equally follows that this paper was never signed, because what was done was not intended as a signature. The cases of Winsor v. Pratt, 6 Eng. C. L. Rep. 302, and Pearson v. Wightman, 1 Rep. Const. Ct. of South Ca. 336, relied on by the other side, recognize the principle for which we contend, and the papers were sustained because the signature was in*195tended to be such. Other cases have been relied on by the counsel on the other side, arising under the statute of frauds, in relation to which the remark may be made, that this statute is satisfied if the agreement, or some memorandum or note thereof. is signed; whereas the statute of wills requires the signing of the very paper intended as a will. But not to comment upon each of these cases particularly, it is enough to say, that if it can be seen by inspection of the paper, that the insertion of the name at the beginning was not intended to be a signature, that the paper was intended to be incomplete until it was farther signed, it will not do to say at this day that such a paper is to be considered as signed. Such a proposition has been utterly repudiated by the English judges in the case of Hubert v. Turner & als., *41 Eng. C. L. Rep. 194, more fully reported under the name of Hubert v. Trekerne & als., 42 Id. 388: and the principles of this decision are sustained by Bayley v. Ashton, 40 Eng. C. L. Rep. 107.

We now see the ground on which alone the name can be considered a signature; and it being impossible to say from the frame of this will that the deceased did not intend to have put his signature to it before supposing it to be complete, this court is bound to say that it is not so signed as to be valid under the statute of wills.

But throw out of view the consideration that there was a seal in Bemayne v. Stanley. Surely it cannot have more effect than a statute which should declare that an instrument to which the person making the same shall put his name in any part of it, by way of signature shall be adjudged and held to be of the same force and obligation as if it were actually subscribed. Yet under our statute concerning scrolls, which uses exactly such language, (1 Rev. Code, *§*94, p. 510,) it has been held, that there must be something on the face of the instrument itself recognizing that the scroll was put there by way of seal. So here there must be something in addition to the name recognizing that it is used by way of signature. As in the one case, the court has adopted a rule to prevent a fraud being committed by putting a scroll to make that a sealed instrument, which was never so intended, so in the other, it will adopt a rule to prevent the mischief equally great that u ould result from making that a signature to a will, which was never intended to be so regarded.

Such a rule does not require the court to say, that a will must always be subscribed at nthe bottom. It is very easy to imagine cases in which the name might be at the side, or at the top, and equally shew that it was intended as a signature. That intention expressed on the face of the paper is the point of importance; and which is essential to the validity of the signature. Not to require *this much, will be to introduce into Virginia a degree of looseness in the execution of wills not justified even by Bemayne v. Stanley; for it does not follow, because in that case the name in the commencement of the paper was held a sufficient signing under circumstances which excluded the idea of danger from such a rule, that, therefore, it would have been held sufficient under circumstances which would threaten serious danger from its establishment.

There is no adjudication in Virginia to restrain this court from making such a decision in the case as is proper. The opinion of chancellor Wythe, in Bailey' v. Teacle, pronounced without any argument on the question, is entitled to little weight; and the opinions of the judges of the general court in the case of Selden v. Coalter, are mere opinions upon this question, the court having refused to admit the paper to probate in that case. These opinions are opposed by the opinions of other judges, as judge Coalter, in the case of Sharp v. Sharp, 2 Leigh 260, judge Tucker, 2 Tucker’s Com. 291, judge Lomax, 3 Lom. Dig. 26: and this conflict of opinions shews that there is no settled opinion in Virginia on the subject, which it may be thought necessary to respect, but that the question is open to be decided as the court may think is correct.

In passing upon this question, the court cannot fail to enquire into the reasons which induced the legislature to place a will wholly written by a testator on the same footing with wills attested by two or more witnesses. As to the proof, there may be perjury in both cases. .But what the legislature meant to do, was to sanction a will so written and signed, that, supposing it to be genuine, it furnished as satisfactory evidence of its being the last will and testament of the deceased, as a writing acknowledged before witnesses. Is this purpose attained, if every name written in the commencement of the paper, is to be deemed a signature? A man may commence *writing his will, and write his name at the beginning, or a sentence or two farther on, and he may have written some of the provisions which he designed that his will should contain, but stopped before he had put down all that he intended; or he may have prepared it as a mere skeleton of a will for farther consideration ; or he may have gone farther even to the In cujus rei testimonium,—does this furnish any satisfactory evidence that what he has written, has been finally determined on by the writer as his will? So far from it, the fact that a subscription at the end of the paper is wanting, always leaves the impression that the determination was not complete.

With all the guards afforded by attesting witnesses, the British parliament has required all wills to be subscribed at the end; and similar legislation has taken place in New York. This is but an additional argument to shew that such a safeguard is wise and politic, and ought not to be dispensed with, except where the signature is put in some other way, effecting the same purpose.

*

The principal case is cited in Perkins v. Jones, 84 Va. 368, 378, 374, 4 S. E. Rep. 833.

†

Olographic Will—Signing at Commencement of.— Ramsey v. Ramsey, 13 Gratt. 664, 70 Am. Dec. 438, and Roy v. Roy, 16 Gratt. 418, citing the principal case, hold that the name of a testator at the commencement of a olographic will is an equivocal act, and unless it appears affirmatively from something on' the face of the paper that it was intended as a signature, it is not a sufficient signing under the statute which requires that the will shall be signed “in such. *189manner as to make it manifest that the name is intended as a signature.” See the principal case cited upon this point, in Warwick v. Warwick, 86 Va. 600, 10 S. E. Rep. 843; Perkins v. Jones, 84 Va. 363, 364, 4 S. E. Rep. 833.

The court, in Ramsey v. Ramsey, 13 Gratt. 664, after discussing the few departures, made by the legislature, from the language of the revisors in 1849, relative to the manner in which the signature of the testator is to be made, said: “It will be further seen on looking to the report of the revisors, p. 624, that in a note to the first clause of the section, they say, ‘This conforms to the decisions in *Waller v. Waller, 1 Gratt. 454,*and is thought to be better than an arbitrary rule requiring the signature at the foot or end of the paper.’ ”

‡

Parol Testimony to Contradict Will.—See principal case cited in Perkins v. Jones, 84 Va. 369, 4 S. E. Rep. 833.

§

Wills—Rules of Construction—Intention of Testator. —The principal case is cited in French v. French, 14 W. Va. 495. See also, *foot-note*to Wootton v. Redd, 12 Gratt. 196.

|

 Wills—Signing of—Construction of Statute.—In McBride v. McBride, 26 Gratt. 476, it was said that, in construing the statutory provision requiring that: “the will shall be signed by the testator, or in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature,” it has been held that no will is sufficiently signed unless it appears affirmatively from the position of the signature, or from some other internal evidence equally convincing, that the testator designed by the use of the signature to authenticate the instrument, citing *Waller v. Waller, 1 Gratt. 454;*Ramsey v. Ramsey, 13 Gratt. 664; Roy v. Roy, 16 Gratt. 418.

The principal case is cited in McBride v McBride, 26 Gratt 481.

In Parramore v. Taylor, 11 Gratt. 244, it is said: “The provision in the new law that the will should be signed ‘in such manner as to make it manifest that the name is intended for a signature,’ was no change of the old law; but merely an express adoption of the judicial construction it had received in *Waller v. Waller, 1 Gratt.*454.”

In Ramsey v. Ramsey, 13 Gratt. 664, 70 Am. Dec. 438, Judge Daniel, delivering the opinion in which all the judges concurred, after reviewing and cornmenting upon the decisions and opinions of the judges who delivered opinions in the case of *Waller v. Waller, 1 Gratt. 454,*upon the reports of the revisors, and referring to Judge Lomax’s exposition of the statute (Va. Code 1849, ch. 122, § 4) 3 Lom. Dig. (2d Ed.) § 35, p. 70, said: “I think there is no serious difficulty in coming to the conclusion that the act recognizes no will as sufficiently signed unless it appears affirmatively from the position of the signature, as at the foot or end, or from some other internal evidence equally convincing, that the testator designed by the use of the signature to authenticate the instrument.” *See foot-note*to Hocker v. Hocker, 4 Gratt. 278; Ramsey v. Ramsey, 13 Gratt. 664.

*196ALLEN, J.

This case presents for consideration a question of very great interest, frequently discussed elsewhere, but never formally decided by this court. Our statute of wills is a transcript of the statute of 29 Charles 2, with the exception that it dispenses with the subscribing witnesses in cases of wills wholly in the handwriting of the testator, a provision not contained in the English statute. The statute of 29 Charles 2, required that the will should be in writing; signed by the devisor, or some other person in his presence, and by his direction; and that it should be attested and'subscribed by three or more credible witnesses in his presence. About four years after the statute was passed, it was determined in the case of Lemayne v. Stanley, 3 Levintz 1, that as the statute does not appoint where the will shall be ^signed, in the top, bottom, or margin, a signing in any part is sufficient. Stanley wrote his will with his own hand, but did not subscribe his name thereto, but only put his seal; and the instrument was subscribed by four witnesses in his presence. See a statement of the case in Freeman 538; Powell on Devises 74. Though the correctness of this construction of the terms of the statute had been frequently questioned in subsequent cases, and, by elementary writers, it had never been overruled, and Lemayne v. Stanley continued to be recognized as authority in England until the recent statute 1 Vict, ch. 26, *&*9, required that wills shall be signed at the foot or end thereof.

Our courts have uniformly acted on the principle, that when an English statute, which has received a settled construction, is re-enacted, here, the legislature, it is to be presumed, designed to adopt it as construed. This consideration seems to have influenced chancellor Wythe in Bailey v. Treacle, Wythe’s Rep. 8, and the judges of the general court in Coalter v. Selden, 2 Va. Cases 553. Judge Tucker, however, in his Commentaries on Blackstone, book 2, ch. 19, p. 291, commenting on the decision in Lemayne v. Stanley, after remarking that it is admitted on all hands this has strained the statute very hard, proceeds to observe, “that no great evil could exist in England from considering signature at the top sufficient, when the whole will is written by the testator, for though so written it must be published and attested, and when that is done it is complete, and until done it is incomplete. Thus identity is attained by handwriting, and completeness by publication. But to translate this decision into our courts might produce serious inconvenience.”

So, too, judge Lomax, in 1 Lomax on Ex’ors and Adm’rs 22, treating of this subject, says, in “Virginia, where a paper without attestation at all, or any distinct act of publication, if it be wholly written by the testator, *may be a valid will; there may be serious objections to allowing a name written by the testator at the beginning of the paper, and without any subscription at the end, to be taken as a signing.”

In Sharp v. Sharp, 2 Leigh 249, Coalter, J., in allusion to this subject, remarks, “that a publication and name thus written” (in the beginning of an attested will,) ‘ ‘ seem there to be considered a good signing, but I believe that is not enough here, inasmuch as without a signature to an olograph will of lands, there would be no such evidence of a concluded and final act.”

These extracts from the opinions of judges, and the most learned commentators on our laws, shew that the law is still considered unsettled in Virginia; at least so far as regards unattested wills. That notwithstanding the opinions of the judges in Coalter v. Selden, (where the will however was not established,) no construction in respect to olograph wills has been so generally acquiesced in as to have become a rule of property, governing the titles of the country, and which ought not therefore to be disturbed.

Much of the difficulty which has occurred in the discussions upon this question with us, proceeds as it seems to me from analogies drawn from the cases decided in the ecclesiastical courts, touching wills of personalty. The only requisite there, is that the will should be in writing. And whilst with us,.an instrument, though not good as a devise of real estate, might still be admitted to probate as a will of personalty, the distinction between the two classes of instruments was not kept sufficiently in view. 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 of parol testimony to prove the testamentary intent. The will, whether of realty or personalty, is a statutory disposition of the property. The very paper must have been intended as and for the *last will. Where the legal formalities are complied with, it stands as the last will, unless cancelled or revoked in the mode prescribed. If those formalities are wanting, parol testimony as to testamentary intent cannot supply the defect. It is the policy of the law to guard against setting up or destroying wills by such testimony, generally consisting of loose conversations of the testator, easily forgotten, often misunderstood, and apt to be misrepresented, and to substitute certain definite acts, to be evidenced by prescribed formalities, and to which, when so performed, the law itself attaches the testamentary intent. The enquiries now to be made in regard to a paper offered for probate, relate to the connection of the instrument with the testator so as to guard against forgery, the presence of those formalities required to establish its finality, and the sanity and freedom of the testator to shew his knowledge of the character of. the act, his capacitjr to do it, and the absence of all improper constraint and influence.

*197In attested wills the connection between the testator and instrument, is shewn 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 testator with the instrument, and that proof *was aided by the acknowledgment of the testator in the presence of the subscribing witnesses. The main fact of connection was more satisfactorily established by the kind of proof held sufficient in Lemayne v. Stanley, than by the mere acknowledgment of the signature in the presence of the subscribing witnesses who did not see him sign; and yet proof of such acknowledgment has been deemed sufficient in all the later cases.

The connection of the testator with the instrument being thus ascertained in the various modes adverted to, fhe 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 freely, 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 shew a change of testamentary intent.

In re-enacting this law, our legislature incorporated with the English statute the provision authorizing olograph wills, and uses the word “signing” as applicable to both classes of wills. It is very manifest, the legislature in respect to both classes, intended to provide that such formalities should be present, as to afford proof upon the face of the instrument, of identity, or connection with the testator, and of finality ; to which proof the law attached testamentary intent, so as to close the door upon all such enquiries, the fruitful source of frauds and perjuries.

The first fact, identity or connection of the instrument with the testator, is attained by proof of handwriting; one degree weaker than the proof required in *Lemayne v. Stanley; for there was acknowledgment before witnesses in addition. Yet it was deemed sufficient in olograph wills to guard against the setting up forged papers as wills of decedents. Eor, though a signature may be readily forged, there would be much difficulty in successfully imitating the handwriting of another throughout the whole instrument. The handwriting, therefore, including the name of the testator, written by himself at the top, or in the body of the instrument, furnished the proof in unattested wills, which is furnished by the signing, in attested wills; and if this were the only function of the “signing” in olograph wills, then there would be conclusive reason for holding that a signing, which was sufficient to furnish this statutory proof in one class of wills, must be equally sufficient to establish precisely the same fact in the other class. But in olograph wills, signing does accomplish another and most important object. It furnishes the proof, and generally, the only proof, of which the fact is susceptible, that the act is a complete, concluded act. Where an instrument is produced, proved to be in the handwriting of the deceased, shewing upon its face that it was a concluded instrument, with his name subscribed at the end thereof, the sanity and freedom of the testator being proved, is not the proof complete? Does it not close the door upon any parol proof as to a change of testamentary intent, as fully and effectually as the proof of the due execution, publication and attestation of an attested will does? This was certainly the intention of the legislature when they" passed the law. But would any degree of proof short of the formalities prescribed for the execution of an attested will suffice, though aided by the strongest proof of testamentary inr tent? Suppose a will not in the testator’s handwriting, but signed by him and attested by one witness, could it be admitted to probate by proof of testamentary intent? Fifty witnesses might be produced to prove the intent *so to dispose of the estate; the moral conviction that he intended that for his will might amount to absolute certainty; and yet no court could listen to such proof in aid of the legal proof required by the statute. When the formalities are present, parol testimony cannot be heard against the will, for that would be to hear parol testimony against the statute. When they are absent, parol testimony cannot be heard to supply their place, for that would be to make wills for men in a manner not recognized by law.

What evidence of finality is afforded by an olograph will, with the name inserted in the top, nothing on the face of the paper indicating it was put there to authenticate it as a signing, but clearly introduced there of necessity, to make sense of the document? None whatever. The instrument may seem to be fully written, may contain a disposi,tion of the entire estate, may contain a *198clause appointing executors, and a residuary clause, be dated, but yet wanting a signature shewing on the face of the instrument an authentic signing—who can say it is a complete, concluded act? Who can determine whether it was not a draft, laid aside for further consideration or consultation? No court upon the mere production of such an instrument, and proof of handwriting alone, would without further proof as to place where found, and the declarations of the testator, admit the instrument to probate. It was conceded in argument that ■such parol proof might be adduced upon the question of testamentary intent. The concession, indeed, necessarily follows from the proposition contended for. The signing in the body of the instrument, from its nature is an equivocal act. The most that can be predicated of it is, that it may or may not have been intended as a signing ■to authenticate the instrument, and that, intention must be made out by other testimony. This at once is conclusive in'my mind to shew that such a signing, is not the signing contemplated by the ^legislature, at least as respects olograph wills. Eor, if it intended to make the handwriting and signing in unattested, equal to the signing, publication -and attestation, in attested wills, and if it attached to these formalities in attested wills the testamentary intent, the same consequence must follow in olograph wills. When, therefore, it is admitted in any. given case that the formalities established, do not prove testamentary intent, that something further and in addition to those formalities, must be adduced to satisfy the •mind that the paper in question was a concluded act, and was intended to be a final disposition of his estate, without any thing more, the paper in question is not a will executed according to the statute, and cannot be received as a statutory disposition of the estate.

By Lemayne v. Stanley, I concede I am bound, when such a case, relating to attested wills, may arise. And I admit the force of the argument that when the legislature used the word “signed” in the same connection as it respects both classes of wills, it ought to receive the same construction. Were it an original question, I would give the word the same construction, as it 'regards both classes of instruments; and hold no sighing to be sufficient, except where it appeared affirmatively upon the •'face, or from the frame of the instrument, the signing was intended to be a signing to give authenticity to the document. But 'the statute, before its adoption here, received a construction with reference to the meaning of the word as relates to attested wills, condemned by all the English jurists,' and at length changed by statutes in England and New York. I do not conceive we are bound to extend an admitted erroneous construction to another class of wills, when by doing so we defeat the leading intent of the legislature in regard to this whole class of wills; thé letting in, indeed the making necessary, the introduction of parol testimony to establish the finality and completeness of the act. These consequences *do not follow the construction given in Lemayne v. Stanley, when confined to attested wills, and, therefore, the construction does no* conflict with the policy of the act to avoid frauds and perjuries, by excluding parol testimony as to the intentions of the deceased. In view of these results, I think, we' are fully justified in giving the word “signing” its natural and appropriate meaning, as applied to unattested wills, and that we may do so, though yielding to the authority of Lemayne v. Stanley,- when a similar case occurs.

I do not wish, however, to be understood as holding a literal signing at the foot or end of the instrument as absolutely necessary in all cases. The signing must be such as, upon the face, and from the frame of the instrument, appears to have been intended to give it authenticity. It must appear that the name, so written, was regarded as a signature; that the instrument was regarded as complete without further signature. And the paper itself must shew this. This is in conformity with the rule in respect to another branch of the statute of frauds as now established in England. In Hubert v. Turner, 41 Eng. C. L. R. 194, the question was, whether an agreement was signed so as to be binding within the statute of frauds. Tindall, C. J., said, “The names of the parties, it is true, are introduced into the body of the instrument; and we will assume, so introduced, by their authority; but those names must have been introduced of necessity to make sense of .the document, and it is impossible to say from the frame of this instrument, that the parties did not intend to have put their signatures to it, before it was supposed to be complete.”

The rule, thus guarded, is safer than if fixed by statute, for that would be inflexible. A testator may not have left himself room to -subscribe his name at the end of the instrument; a signing under such circumstances at some other place, appearing upon the face of the document to have been a signing to authenticate the instrument, *would be a sufficient signing. Other cases may be supposed.

In the case under consideration, it is sufficient to say, it does not appear on the face of the paper, that the signing at the beginning' was intended or regarded as a signing to authenticate it, as a complete and final act. Not so appearing, it is not a statutory will, and, therefore, I do not deem it necessary to consider or look into the parol evidence touching the testamentary intent as evidenced by the declarations of the deceased.

Upon that evidence, however, I feel no doubt in saying that the testator did not regard this as a complete and final act, and that it would not justify the establishment of this paper as the last will of the deceased.

*199I am for reversing the sentence and rejecting the paper.

BALDWIN, J., concurred in the opinion of Allen.

STANARD, J., concurred in reversing the judgment of the court below.

CABELL, P. The paper propounded as the will of John Waller, bears upon its face internal evidence that he did not regard it as a final and concluded act. It -is manifest, from the paper itself, that he intended something farther to be done; that it should he “signed and acknowledged in the presence of” witnesses. He did not, therefore, intend this paper, which is not thus signed and acknowledged, to be his will.

Upon this ground, without considering any other question raised in the argument of the counsel, I am of opinion to reverse the sentence of the circuit superior court admitting it to record.

BROOKE, J., dissented.