Kidd v. Gunter

Present: All the Justices
MARGARET R. KIDD, ET AL.
v. Record No. 002420 	OPINION BY JUSTICE CYNTHIA D. KINSER
September 14, 2001
LOUISE RAGLAND GUNTER, ET AL.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
The plaintiffs, Margaret R. Kidd, Bernard G. Ragland,
Sr., and Graham K. Ragland, the surviving whole blood
siblings of Frances R. Fore (Fore), who died in March 2000,
instituted suit in the circuit court, offering for probate
as the holographic will of the decedent a handwritten
journal prepared by Fore during her lifetime. 	The named
defendants in the suit are the children of Fore’s two
deceased whole blood siblings, Fore’s surviving half blood
sibling, and the children of Fore’s deceased half blood
sibling. 	Those defendants denied that the decedent’s
handwritten journal satisfies the requirements of Code
§ 64.1-49 and asked the court to enter an order declaring
that Fore died intestate.
The court concluded that the journal proffered by the
plaintiffs was wholly in the handwriting of the decedent
and that Fore made the journal with testamentary intent.
However, the court determined that the decedent’s name,
which appears only at the beginning of the journal, was not

intended as a signature in accordance with the requirements
of Code § 64.1-49. 	Therefore, the circuit court held that
the journal is not a valid holographic will of the decedent
and refused to probate it. 	The plaintiffs appeal from that
decree. 	We agree with the circuit court and will,
therefore, affirm the court’s judgment.
The journal at issue is bound and contains many pages,
most of which are blank. 	On the inside cover in a pre-
printed box, the decedent wrote her name, “Frances R.
Fore,” and her address, “6602 Rollingridge Lane[,]
Chesterfield, Va 23832.” 	After the pre-printed word
“Date,” which appears in the box, Fore wrote the words
“Started July 1994.” 	On the first few pages of the
journal, Fore listed some of her assets and then
consecutively numbered the next twelve pages of the
journal. 	On the page numbered 1, Fore wrote: “This journal
has been set up to eliminate problems for my family at the
time of my death.” 	After then setting out specific funeral
and burial instructions, Fore stated: “The next few pages
will instruct you as to what happens to a lot of my
personal belongings. 	All my money & other assets should be
divided equally among Jimmy, Henry, Margaret, Bernard, &
Graham, [Fore’s whole blood siblings] if they are living at
the time of my death.” 	On the pages numbered 2 through 12,
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Fore made specific bequests of personal property to various
individuals. 	Nothing appears on page 12 after the bequest
listed there. 	Extraneous information is found on the next
two unnumbered pages, which are then followed by many blank
pages. 	Finally, several pages at the end of the journal
contain a list of Fore’s insurance policies and bonds.
At a hearing before the circuit court, two witnesses
testified that the handwriting appearing on the inside
cover of the journal and on the pages numbered 1 through 12
is that of the decedent. 	A witness who qualified as an
expert in document examination agreed. 	However, the expert
explained that Fore wrote some of the passages in different
inks and that she did not write all the pages of the
journal offered as her last will and testament at the same
time.
On appeal, the sole issue is whether Fore signed the
journal in such a manner as to make it manifest that her
name on the inside cover of the journal was intended as a
signature in accordance with the requirements of Code
§ 64.1-49. 	In pertinent part, that statutory provision
provides that “[n]o will shall be valid unless it be in
writing and signed by the testator . . . in such manner as
to make it manifest that the name is intended as a
signature . . . .”
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Although Code § 64.1-49 requires that a testator sign
a will, the statute does not specify where the signature is
to appear in a writing intended as a will. 	Slate v.
Titmus, 238 Va. 557, 559, 385 S.E.2d 590, 591 (1989);
McElroy v. Rolston, 184 Va. 77, 83, 34 S.E.2d 241, 243,
(1945). 	A testator’s signature at the conclusion of the
instrument may be the best method of executing a will in
accordance with Code § 64.1-49, but this Court has
repeatedly held that the signature need not appear at the
foot or end of the instrument. 	See, e.g. Slate, 238 Va. at
559, 385 S.E.2d at 591; Payne v. Rice, 210 Va. 514, 517,
171 S.E.2d 826, 828 (1970); Hall v. Brigstocke, 190 Va.
459, 466, 58 S.E.2d 529, 533 (1950); McElroy, 184 Va. at
83, 34 S.E.2d at 243; Hamlet v. Hamlet, 183 Va. 453, 461,
32 S.E.2d 729, 732 (1945); Dinning v. Dinning, 102 Va. 467,
469, 46 S.E. 473, 473-74 (1904); Warwick v. Warwick, 86 Va.
596, 602-03, 10 S.E. 843, 845 (1890); Ramsey v. Ramsey, 54
Va. (13 Gratt.) 664, 670 (1857). 	“[H]owever, it must
appear unequivocally from the face of the writing” that the
person’s name therein is intended as a signature. 	Slate,
238 Va. at 560, 385 S.E.2d at 591 (citing Payne, 210 Va. at
517, 171 S.E.2d at 828). 	And, when a testator’s name is in
the opening clause or at the beginning of the writing,
“such insertion of the name [is] ‘an equivocal act’, and in
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the absence of any affirmative evidence on the face of the
paper, it [is] not manifest that the name was intended as a
signature to the paper.” 	McElroy, 184 Va. at 82, 34 S.E.2d
at 243; accord Warwick, 86 Va. at 602, 10 S.E. at 845;
Ramsey, 54 Va. (13 Gratt.) at 670. 	In other words, “there
must be a concurrence of the animus testandi and the animus
signandi — that is, the intention to make a will and the
intention to sign the instrument as and for a will.”
Hamlet, 183 Va. at 462, 32 S.E.2d at 732 (citing Forrest v.
Turner, 146 Va. 734, 745, 133 S.E. 69, 72 (1926)).
Although the circuit court found that Fore prepared
the journal with testamentary intent, such intent alone is
not sufficient to satisfy the signature requirement. 	This
Court held in Meany v. Priddy, 127 Va. 84, 85, 102 S.E.
470, 470 (1920) that
[no] mere intention or effort to dispose of property
by will, however clearly and definitely expressed in
writing, is sufficient; such purpose must be executed
in the only manner authorized by the statute, that is,
the writing itself must be authenticated by the
signature of the decedent. 	It is not sufficient to
raise a doubt as to whether his name is intended to
authenticate the paper which is propounded as a will,
for, to use the explicit language of the statute, it
must be signed “in such manner as to make it manifest
that the name is intended as his signature,” and
unless so signed it is not valid.
The plaintiffs do not dispute these principles but
contend that Fore’s signature on the inside cover of the
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journal satisfies the provisions of Code § 64.1-49.
Relying primarily on this Court’s decisions in Slate and
Hall, the plaintiffs argue that Fore’s signature at the
beginning of the journal combined with the language
evidencing her intent, the specific bequests of personal
property, and the inclusion of a residuary clause
sufficiently connect the signature to the writing and
authenticate the document. 	We do not agree.
In Hall, the document in question, written wholly in
the handwriting of the alleged testatrix, began within the
phrase: 	“Roberta Leckie Rittenhouse
Written by myself October 13th 1946
My Will[.]”
190 Va. at 463, 58 S.E.2d at 531. 	After making specific
monetary bequests and including two residuary clauses, one
regarding the remainder of her money and the other
disposing of any remaining property, the testatrix
concluded the writing by stating: “This is My last Will and
Testament.” 	Id. at 464, 58 S.E.2d at 531. 	This Court
concluded that
[t]he will itself is sufficient to show that the
name was manifestly intended as a signature. 	It
shows upon its face the finality of the
instrument and the intent of the testatrix to
make a will, and . . . to sign as required by the
statute. 	It is a complete document which
disposes of all of the testatrix’s property and
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contains no blanks or anything that would
indicate that it was not her last will and
testament. . . . 	When the last sentence of the
will . . . is considered with the first
paragraph, it is manifest that she intended her
name as a signature to her will.
Id. at 466-67, 58 S.E.2d at 533.
Similarly, in Slate, the writing showed the finality
of the instrument and the testator’s intent to make a will.
The document, entirely in the decedent’s handwriting,
began: “I, Garland B. Slate, . . . do hereby declare this
to be my last will and testament.” 	238 Va. at 561, 385
S.E.2d at 592. 	After disposing of his entire estate, Slate
then wrote: “Given under my hand this 25th day of October
1986.” 	Id. 	This Court concluded that Slate, by including
this final statement, “adopted his name in the exordium
clause as his signature, thereby authenticating all that
followed it.” 	Id. 	That final phrase was the “other
evidence” on the face of the writing that demonstrated that
the signature was for the purpose of ratifying and
authenticating the contents of the instrument. 	Ramsey, 54
Va. (13 Gratt.) at 670.
Contrary to the plaintiffs’ argument, the Hall and
Slate cases are distinguishable from the present case.
Unlike the writings at issue in those cases, Fore’s journal
does not contain any statement or clause to denote finality
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to the document, i.e., there is nothing after the specific
bequest on page 12 to indicate that Fore had finished her
“will” and wished to adopt and authenticate the writing as
her complete testamentary act. 	With regard to the lack of
finality, it is also significant that there was undisputed
evidence that Fore wrote the passages in different inks and
at different times.
In McElroy, a case factually similar to the present
one, the alleged testatrix included her name at the
beginning of the writing, and ended the document with a
residuary clause and statement naming a person to settle
the estate. 	184 Va. at 79, 34 S.E.2d at 241-42.
Concluding that there was nothing on the face of the
instrument to indicate that the testatrix intended her name
at the top of the page to be her signature to the will or
to denote that she had finished the act of disposing of her
property after her death, this Court stated that
[t]he name of a person at the top of a written
instrument, without any reference whatever to it
in the body of the instrument, manifests no
clearer intention of the signer that it is
intended as his signature to the instrument than
his name appearing in the opening clause thereof,
or elsewhere in its body, without evidence or
explanation on the face of the paper showing that
such name was signed there for the purpose of
ratifying and authenticating its contents. 	It
connects the writer with the paper, but it does
not show a finality and completion of
testamentary intent.
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Id. at 83-84, 34 S.E.2d at 243-44.
In the present case, Fore placed her signature in a
pre-printed box on the inside cover of the journal. 	That
space is typically used to denote ownership of a journal
rather than to ratify and authenticate the contents of the
journal. 	As we said in McElroy, insertion of the
decedent’s name at the beginning of a writing is an
“equivocal act.” 	Id. at 82, 34 S.E.2d at 243. 	No
affirmative evidence on the face of the journal
demonstrates that Fore intended her signature in that box
to be her signature to the will. 	Nor, as we said
previously, is there evidence that she had completed the
testamentary disposition of her property. 	Therefore, even
though Fore clearly had testamentary intent, we conclude
that she did not sign her journal “in such manner as to
make it manifest” that her name on the inside cover was
intended as a signature to the writing. 	Code § 64.1-49.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
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