not signed escaped the attention of all of the family, and even of Judge Grinnan, who, on January 23, 1913, accompanied Mrs. Pilcher and Mrs. Woods to the chancery court of the city of Richmond for the pur- | pose of having said paper admitted to probate as Mr. Pilcher's will. Upon reaching the court the paper was shown to the presiding judge, who called Judge Grinnan's attention to the absence of any signature. Thereupon Judge Grinnan abandoned the idea of offering the paper for probate and instead immediately moved on behalf of Mrs. Pilcher for her qualification as administratrix, and she at once qualified as such, although on account of a mistake in her name in the bond it was necessary for her to sign another bond on January 24th. In qualifying as administratrix, the clerk administered to her the formal oath to the effect that as far as she knew or believed Mr. Pilcher left no will. A few days later Mrs. Pilcher returned with her sister to her old home in Wheeling, West Virginia. "Several weeks thereafter, in the latter statute where the testator was able to indicate a desire to sign his will, and in accordance with this indication another guided his hand while he made his mark. Compare with Cozzens's Will, 61 Pa. 196, and Main v. Ryder, 84 Pa. 217. It has been held that an express request for assistance need not be made. Vandruff v. Rinehart, 29 Pa. 232.. Such a request may be inferred from the circumstances of the case. McMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682; Re Knight, 87 Misc. 577, 150 N. Y. Supp. 137. If testator knowingly accepts the aid, it is sufficient. Shotwell's Estate, 11 Pa. Co. Ct. 444. It is stated in Fritz v. Turner, 46 N. J. Eq. 515, 22 Atl. 125, that it is not necessary to reconcile contradictory testimony upon the subject of the testator's ability to write, nor to determine precisely how far the one assisting controlled the hand of the testator; the important question is whether the testator had the purpose to write his name or make his mark upon the will as his signature to it, and whether in fact he did make such a physical effort to sign as resulted in a mark upon the paper by which the paper could be identified. The statute of this state as interpreted by the courts requires that the testator himself must sign his will, and he cannot direct or authorize another to sign it for him. It is stated by the court in Fritz v. Turner that the statute could not have intended that the testator's signature must be his unaided act. In Re Kearney, 69 App. Div. 481, 74 N. Y. Supp. 1045, it is stated that the extent of the aid, so long as it is assistance, does not make the signature invalid, if the signing is in any degree an act of the testator acquiesced in and adopted by him. The part of February, 1913, Mrs. Pilcher was reminded by her sister, Mrs. Woods, of the will executed by Mr. Pilcher on December 17 or 18, 1912, and she at once wrote to Judge Grinnan telling him that such a paper had been drawn by Mr. Pilcher, and Judge Grinnan replied urging her to make a search for it, and to let him know if she found it. "At that time her mother was very ill, requiring the constant attention of Mrs. Pilcher, her sister, and two trained nurses, and this condition remained unaltered until her mother died in October, 1913. In accordance, however, with Judge Grinnan's advice, Mrs. Pilcher and her sister then made such search for the will as their mother's condition permitted, but without success. "After her mother's death in October, 1913, it was determined to break up the family home in Wheeling, and in February, 1914, while preparing to move, Mrs. Pilcher and Mrs. Woods came across a satchel of Mr. Pilcher's, which Mrs. Pilcher had carried from Richmond after his death, and in which they found a bundle of his priquestion whether the signature is the act of the testator does not turn upon the extent of the aid, but whether the aid was assistance or control. If, against the wish of the alleged testator at the time, or without his consciousness as to the purpose, another writes the name with a pen which is merely in physical contact with the hand of the alleged testator, then the signature is not recognized as made by the testator. In this case an expert in handwriting who had compared the signature of the will with two normal signatures of the testator testified that he failed to see a particle of the testator's handwriting in the signature, and that in his opinion the testator had no superintendence, either mental or physical, of the act, although he may have touched the pen; it is stated by the court that this testimony should not prevail against the positive testimony of intelligent and comparatively disinterested witnesses, that not only did the testator direct the terms of his will, but that it was read over to him, that he attempted to sign it unassisted, that only when he failed did he accept an offer of assistance, that he took part in the signing of the will, and that he published it. This statement of the law was approved in Re Baumann, 85 Misc. 656, 148 N. Y. Supp. 1049. It is sometimes stated that where the hand of the testator is guided by another at testator's request, this amounts at least to an express direction to the other to sign his name. Watson v. Pipes, 32 Miss. 466; Trezevant v. Rains, Tex. 19 S. W. 567; Den ex dem. Stevens v. Vancleve, 4 Wash. C. C. 262, Fed. Cas. No. 13,412. The question, however, of signature by another, is not considered in this note. As to signature made by hand of unconscious person, see note to Barkey v. Barkey, L.R.A. 1915B, 678. W. A. E App. 229, 31 N. E. 856; Loser v. Plainfield Sav. Bank, 149 Iowa, 672, 31 L.R.A. (N.S.) 1112, 128 N. W. 1101; Koth v. Pallachucola Club, 79 S. C. 514, 61 S. E. 77; State, Elberson, Prosecutrix, v. Richards, 42 N. J. L. 69; Laflin & R. Powder Co. v. Steytler, 146 Pa. 434, 14 L.R.A. 690, 23 Atl. 215; Moon v. Stone, 19 Gratt. 130; Jarman, Wills, p. 156; Brett v. Donaghe, 101 Va. 788, 45 S. E. 324; Re Young, 123 Cal. 337, 55 Pac. 1011; Maris v. Adams, Tex. Civ. App. - 166 S. W. 485. vate papers which he valued very highly, 7, 37 S. E. 771; Bascom v. Toner, 5 Ind. the same bundle which Mrs. Pilcher had handed to him at his request some time after Christmas day, 1912. In sorting over this bundle of papers they found an envelop upon which was written in the handwriting of Mr. Pilcher, but unsigned, this indorsement, 'My will, keep.' The envelop contained the paper which had been written by Mr. Pilcher on December 17 and 18, 1912, together with memoranda of certain personal directions to Mrs. Pilcher. At that time Mrs. Pilcher had no reason to think that there would be any contest over the validity of the paper as Mr. Pilcher's will, she attached no special value to the envelop and therefore did not preserve it. "Mrs. Pilcher at once showed the will to her father's attorney in Wheeling, who advised her to take it in person to Richmond. She was then quite sick and unable to leave home, but as soon as her physician would allow her to travel, which was in the early spring, she brought the will to Richmond, where it was offered for probate on April 10, 1914. "After notice to the Rev. John M. Pilcher, the father, sole heir and next of kin of E. M. Pilcher, deceased, as provided by law, and upon an issue of devisavit vel non, both parties waiving a jury, the court heard the evidence, and admitted the said paper to probate as the will of E. M. Pilcher by order entered on the 9th day of June, 1914, from which order this appeal has been taken." - The lower court erred in admitting as competent, over the objections based upon the provisions of § 3346-a of the Code, certain testimony of the widow of decedent. Wilkes v. Wilkes, 115 Va. 886, 80 S. E. 745; Reeves v. Herr, 59 Ill. 81. The alleged will was not the last will and testament of Edwin M. Pilcher, deceased. The burden of proving her allegation was upon proponent, which she failed to sustain. Bibb v. American Coal & I. Co. 109 Va. 264, 64 S. E. 32; Porterfield v. Com. 91 Va. 801, 22 S. E. 352; Moore v. West Virginia Heat & L. Co. 65 W. Va. 558, 64 S. E. 721; 2 Enc. Ev. 785. Mr. John B. Minor, for defendant in error: The use of his initials by the testator, animo signandi, is a signing within the meaning of the statute of wills. McBride v. McBride, 26 Gratt. 476; Blewitt's Goods, L. R. 5 Prob. Div. 116, 49 L. J. Prob. N. S. 31, 42 L. T. N. S. 329, 28 Week. Mr. George Bryan, for plaintiff in er- Rep. 520, 44 J. B. 768; Margary v. Robin ror: The alleged will was not signed, as required by § 2514 of the Code, with the name of the decedent, and should have been rejected. McBride v. McBride, 26 Gratt. 476; 30 Am. & Eng. Enc. Law, p. 551; Re Rand, 61 Cal. 468, 44 Am. Rep. 555; Armant's Suscession, 43 La. Ann. 314, 26 Am. St. Rep. 183, 9 So. 50; Wade v. State, 22 Tex. App. 256, 2 S. W. 594; Mills v. Howland, 2 N. D. 30, 49 N. W. 413; Vines v. Clingfost, 21 Ark. 309; Watson v. Pipes, 32 Miss. 451; Seventh Street Colored M. E. Church v. Campbell, 48 La. Ann. 1543, 21 So. 184; Davis v. Sanders, 40 S. C. 507, 19 S. E. 138; Plate's Estate, 148 Pa. 55, 33 Am. St. Rep. 805, 23 Atl. 1038; Smith v. Smith, 112 Va. 208, 33 L.R.A. (N.S.) 1018, 70 S. E. 491; Murguiondo v. Nowland, 115 Va. 160, 78 S. E. 600; Waller v. Waller, 1 Gratt. 465, 42 Am. Dec. 564; Warwick v. Warwick, 86 Va. 596, 6 L.R.A. 775, 10 S. E. 843; Dinning v. Dinning, 102 Va. 467, 46 S. E. 473; Wall v. Wall, 123 Pa. 545, 10 Am. St. Rep. 549, 16 Atl. 598; Slingluff v. Gainer, 49 W. Va. son, L. R. 12 Prob. Div. 8, 56 L. J. Prob. N. S. 42, 57 L. T. N. S. 281, 35 Week. Rep. 350, 51 J. P. 407; 2 Minor, Real Prov. § 1252; Smith v. Jones, 6 Rand. (Va.) 36; Clarke V. Dunnavant, 10 Leigh, 14; Rosser v. Franklin, 6 Gratt. 1, 52 Am. Dec. 97; Page, Wills, § 172; 1 Jarman, Wills, 6th Am. ed. 106-108; Schouler, Wills, 3d. § 303; 1 Redfield, Wills, 3d ed. 203-205; Rood, Wills, § 254; Knox's Estate, 131 Pa. 220, 6 L.R.A. 353, 17 Am. St. Rep. 798, 18 Atl. 1021; Plate's Estate, 148 Pa. 55, 33 Am. St. Rep. 805, 23 Atl. 1038; Bradford's Succession, 18 Ann. Cas. 766, and note, 124 La. 44, 49 So. 972; Adams v. Chaplin, 1 Hill, Eq. 265; Smith v. Howell, 11 N. J. Eq. 349; Waller v. Waller, 1 Gratt. 454, 42 Am. Dec. 564; Palmer v. Stephens, 1 Denio, 478; Sanborn v. Flagler, 9 Allen, 474; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 454, 14 L. ed. 493, 496; Barry v. Coombe, 1 Pet. 640, 7 L. ed. 295. The placing of his initials by the testator at the end of the will, animo signandi, makes it manifest that the initials were Lemayne v. Stanley, 3 Lev. 1; Waller v. Waller, 1 Gratt. 454, 42 Am. Dec. 564; 2 Minor, Inst. 4th ed. 1012; Ramsey v. Ramsey, 13 Gratt. 664, 70 Am. Dec. 438; Roy v. Roy, 16 Gratt. 418, 84 Am. Dec. 696; McBride v. McBride, 26 Gratt. 476; Dinning v. Dinning, 102 Va. 467, 46 S. E. 473. intended as a signature, within the mean- The proposed will was never signed, and ing of the statute. 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 of 26 Gratt., 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 Contestant could not have been prejudiced by the ruling admitting testimony of decedent's widow. New York, P. & N. M. R. Co. v. Wilson, 109 Va. 754, 64 S. E. 1060; Lynchburg Mill Co. v. National Exch. Bank, 109 Va. 639, 64 S. E. 980; Barnes v. Crockett, 111 Va. 240, 36 L.R.A. (N.S.) 464, 68 S. E. 983. The alleged will was the last will and testament of Edwin M. Pilcher, deceased. McBride v. McBride, 26 Gratt. 480. | Whittle, J., delivered the opinion of the only, the attestation of the witnesses very 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. 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 وو 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. Whether clearly indicates that the testator designed 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 Blewitt's Goods (1880) L. R. 5 Prob. Div. p. 116, the court said: "The only question then, is whether the signature subscription by initials only are sufficient. A mark is sufficient though the testator can write. Baker v. Dening, 8 Ad. & 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." El. 94, 3 Nev. & P. 228, 1 W. W. & H. 148, ¦ since that statute does not require attesta7 L. J. Q. B. N. S. 137, 2 Jur. 775. Initials, tion in such case. if intended to represent the name, must be equally good. The language of the lord chancellor in Hindmarsh v. Charlton, 8 H. L. Cas. 160, at page 167, seems equally applicable to the testator's signature as to the witnesses' subscription: 'I will lay down this as to 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 a mark or by initials, or by writing the name in full.'" So, in Margary v. Robinson (1886) L. R. 12 Prob. Div. p. 8, 56 L. J. Prob. N. S. 42, 57 L. T. N. S. 287, 35 Week. Rep. 350, 51 J. P. 407, 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. Virginia Code 1904, § 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 quare 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, 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 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 vital 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 Estate (1890) 131 Pa. 220, 6 L.R.A. 353, 17 Am. St. Rep. 798, 18 Atl. 1021, 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, was 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 Browne on the Statute of Frauds, § 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.” from In 1 Jarman on Wills, 6th Am. ed. 106108, it is said: "It has been decided that a mark is sufficient, notwithstand ing 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, Wills, supra; Page, Wills, § 172; Schouler, Wills, 3d ed. § 303; 1 Redfield, Wills, 3d ed. pp. 203, 205; Rood, Wills, §§ 254, 255. That testator's signature by a mark is sufficient is well settled by the Virginia | guarded the admission of such communicaauthorities. Smith v. Jones, 6 Rand. (Va.) 36; Clarke v. Dunnavant, 10 Leigh, 14; Rosser v. Franklin, 6 Gratt. 1, 52 Am. Dec. 97; 3 Lomax's Dig. 2d ed. pp. 38, 70; 2 Minor, Real Prop. § 1252; Long's Notes on Law of Wills (1910), p. 17. tions 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 cir first will was executed Mr. Pilcher prepared. 66 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 circumstance that some ten days after the cumstances, 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 appropriate 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's 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. 664, 70 Am. Dec. 438; Roy v. Roy, 16 Gratt. 418, 419, 84 Am. Dec. 696; McBride v. McBride, 26 Gratt. 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 § 3346a, 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 safe 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. |