Wills. Signature.

Name of Testatrix at Top of Holographic Will Held Manifestly Intended

as A Signature
Source: Virginia Law Review, Vol. 37, No. 2 (Feb., 1951), pp. 348-350
Published by: Virginia Law Review
Stable URL: https://www.jstor.org/stable/1069549
Accessed: 01-04-2020 04:33 UTC

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 348 Virginia Larw Review [Vol. 37

Morris v. Calhoun, supra; Lang v. Shaw, 113 WV. Va. 628, 169 S.E. 444
(1933); Whited v. Phillips, supra.
The decision in the instant case works no great hardship upon the peti-
tioner, since it would ordinarily be relatively simple to obtain service of
process upon a party in the county of his residence without resorting to
service upon him while he was actually in the presence of the court. This
fact appears to account for the scarcity of reported cases dealing Fwith
the issue involved in the instant case. However, as indicated by the
dissent, a grant of immunity to the petitioner, a resident, in the case under
consideration would not have amounted to an extension of the doctrine
underlying the privilege, since it was originally available only to residents,
and was later extended to non-residents.

Wills-Signature-Name of Testatrix at Top of Holographic Will

Held Manifestly Intended as A Signature.-Roberta Leckie Rittenhouise
died, apparently intestate, on Dec. 9, 1946, and her property was distributed
to her heirs at law by the administrator. Subsequently, an instrument en-
tirely in the decedent's handwriting was discovered among her effects,
which was duly probated as her will. An administrator d.b.n.c.t.a. was
appointed, who brought a suit in chancery to impress a trust on the dece-
dent's estate in the hands of the heirs in favor of the legatees under the
will. The instrument began, "Roberta Leckie Rittenhouse". Directly
underneath the name was, "Written by myself October 13, 1946", and
under the latter, "My Will". Then followed the disposition of the de-
ceased's property, and a residuary clause, but her name did not again
appear in the instrument. The defendants demurred on the ground that
the will was not executed in accordance with the Virginia statute, which
requires that the testator's name be manifestly intended as a signature. The
lower court sustained the demurrer. On appeal, held, reversed. The name
of the testatrix was manifestly intended as a signature, and the instrument
was a valid will. Hall v. Brigstocke, 190 Va. 459, 58 S.E.2d 529 (1950).
The right to make a will is a statutory privilege, not a natural right, and
the conditions set out by the legislature as essential to the validity of a
will must be strictly complied with bv the testator. See Cornett v. Coni-
rnonwealth, 127 V~a. 640, 643, 105 S.E. 230, 231 (1920). One of those
conditions, which has been universally adopted, is that a will must contain
the testator's signature. See Warwick v. Warwick, 86 Va. 596, 600, 10
S.E. 843, 844 (1890). Some states have followed the English WVills Act,
1837, 7 WAM. 4 & 1 Vic., c. 26, ? 9, which requires absolutely that a will
must be signed at the end in order to be valid. Borchers v. Borchers, 145
Ark. 426, 224 S.W. 729 (1920); ROLLINSON, WILLS 177-185 (1939). Other
states, including Virginia, have accepted as a model the Statute of Frauds,
1677, 29 CAR. 2, c. 3, ? 5, under which the testator's signature need not

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 1951] Virginia Section 349

appear at the end, but may ap

146 Va. 734, 133 S.E. 69 (1926). The present Virginia statute on the
subject was passed by the legislature in 1850, a unique provision prevailing
only in this state and in West Virginia: "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. . . ." VA. CODE ANN. ? 64-51
(1950). The cases in which a will has been upheld as conforming to the
statute have been chiefly concerned with locating the testator's name at
the end of the will, where the signature is normally placed. E.g., Presby-
terian Orphans' Home v. Bowman, 165 Va. 484, 182 S.E. 551 (1935);
Dinning v. Dinning, 102 Va. 467, 46 S.E. 473 (1904). Otherwise, the re-
quirement that the testator's name manifestly appear to have been intended
as a signature has been strictly construed by the Virginia court in the past.
Thus, it has been held that the manifestation must appear affirmatively on
the face of the paper, no extrinsic evidence being admissible to prove or
disprove it. Ramsey v. Ramsey, 54 Va. (13 Gratt.) 664 (1857); Waller v.
Wmaller, 42 Va. (1 Gratt.) 454 (1845). The mere presence of an animus
testandi, no matter how clearly expressed in writing, is not sufficient, un-
less accompanied by the testator's name so included that it was manifestly
intended as a signature to the paper. Hamlet v. Hamlet, 183 Va. 453, 32
S.E. 2d 729 (1945); Meany v. Priddy, 127 Va. 84, 102 S.E. 470 (1920). An
unsigned will, enclosed in a sealed envelope on which was written "My
Will", followed by the testator's signature, is not signed within the meaning
of the statute. Warwick v. Warwick, supra. Nor is the writing of the
testator's name in the exordium clause of a will of itself a signing of the
will. Roy v. Roy, 57 Va. (16 Gratt.) 418 (1863); Ramsey v. Ramsey,
supra. In a recent decision involving substantially the same facts as the
instant case, the court favored a rigid construction of the statute, holding
that the name of a person at the top of a written instrument, without any
reference to it in the body of the instrument, does not make it manifest that
the name is meant to be a signature. McElroy v. Rolston, 184 Va. 77, 34
S.E.2d 241 (1945). The contrary policy argument is set out in Forrest v.
Turner, supra at 746, 133 S.E. at 72, quoting In Re Field's Will, 204 N.Y.
448, 455, 97 N.E. 881, 883 (1912), in the following language: "The evil
of fraudulent changes in wills is rare, while the evil of defeating wills
altogether in the manner suggested is common. Hence we think we have
gone far enough in the direction of rigid construction, and that the doctrine
of certain authorities should not be extended, lest, in the effort to pre-
vent wrong, we do more harm than good."
The present decision represents a departure from the previous trend
of Virginia authority in this sphere. It is submitted that the court failed
in its attempt to distinguish McElroy v. Rolston, supra, and that of the

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 350 Virginia Law Revniew [Vol. 37

two the McElroy opinion is more in conformity with the wording of the
statute. As was there said, ". . . we should not relax the plain mandatory
requirement and thus establish an equivocal rule applicable, perhaps, to
the emotions of the moment, or to the exigencies of a particular set of
facts. . .." While it may be contended that the result in the instant case
is sound by reason of public policy, the answer is that if the statutory
provision ought to be changed, such alteration should be effected by the
legislature, not by the courts.

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