Opinion. would his action have had that effect, even if he had so intended? Our statute again provides on this point in the eighth section of the same chapter as follows: "No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, [seventh section, which provides for revocation by marriage,] or by a subsequent will or codicil; or by some writing declaring an intention to revoke the same; and executed in the same manner in which a will is required to be executed; or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the same, or the signature thereto, with the intent to revoke." The statute must be complied with as completely in order to revoke a will as it must be in order to make a valid will. At an early day in our history the legislature ingrafted upon the English statute of wills a provision which dispensed with subscribing witnesses in cases of wills wholly in the handwriting of the testator, as the statute either in England or this State did not provide where the will should be signed whether at the bottom or top, or elsewhere. It was held in some cases that a signing anywhere in the will was sufficient. Under the English statute (29 Car. II.) of course such a will had to be attested by witnesses, whether wholly written by the testator or not, as the statute required that it should be in writing, signed by him or by his direction, and that it should be attested and subscribed by three or more credible witnesses in his presence; and this view was acquiesced in in England until the statute of 1 Vict., which required that wills should be signed at the end thereof. In this State as we have seen, no witnesses were required to a will wholly written by the testator; and although our courts showed a disposition at one time to follow the English view as to the sufficiency of a signature anywhere on the paper, (Bailey v. Teackle, Wythe, 173; Selden v. Coalter, 2 Va. Cas., 553,) the publication required in England in such cases being absent under our law, the view was questioned and finally denied, as the proof of finality of intention might be Opinion. fact is sus altogether wanting in an unsigned and unattested will, recited in the case of Waller v. Waller, 1 Gratt., 454. Such a will coming under consideration, it was held in this court that a will unsigned and unattested, was lacking in evidence of finality of intention, and the will in such guise was rejected. The legislature thereupon amended our statute so as to bring it plainly in accord with this decision, and it was required that the will should be signed in such manner as to make it manifest that the name was intended as a signature. Judge Allen said in Waller v. Waller, supra: "But in olograph wills signing does accomplish another and most important object. It furnishes the proof, and generally the only proof of which the ceptible, that the act is a complete concluded act. Where an instrument is produced, proved to be in the handwriting of the deceased, showing 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 any change of testamentary intent as fully and effectually as the proof of the due execution, publication, and attestation of an attested will does?" This case was decided in 1845, and the law of this State at that time required wills of personalty to be executed and attested in the same manner as wills of real estate, (Act February 20, 1840; Acts 1839-40, c. 57, §2,) which by the act of March 4, 1835, (chapter 60, § 1, p. 43, Acts 1834-5,) unless wholly written by the testator, were required to be attested by two or more credible witnesses in his presence; and it was provided by the same act that the will should be signed by the testator in case of an olograph will, and otherwise by some person in his presence and by his request. At our revisal in 1849, the revisors recommended, as they say, in conformity to the decision in Waller v. Waller, supra, an amendment to the section, the words, "in such manner as to make it manifest that the same is intended as a signature," which Opinion. in their opinion was thought better than an arbitrary rule requiring the signature at the end of the paper. Report of Rev. p. 516, c. 122, § 4. This section was adopted by the legislature as to this as recommended, though otherwise changed. Code 1849, c. 122, § 4, p. 516. In the case of Waller v. Waller, Brooke, J., dissented, but four judges rejected the will. Only three assign their reasons, but these concur in rejecting the will because it did not manifest a finality of intention. Since the act of 1849, supra, the case of Ramsey v. Ramsey, 13 Gratt., 664, was decided in this court (in 1857.) In that case, which was concerning an olograph will, the only question raised and decided was as to the sufficiency of the signing where the name of the testator appeared in the beginning only, as, "I, Thomas Ramsey, of C., do make this, my last will and testament," etc. The court held that the signing at the top alone was an equivocal act, and the will was rejected because the requirements of the statute were not complied with, and the will was not signed in such a manner as to make it manifest that the name was intended as a signature. In Jarman on Wills, as to execution of wills, (volume 1, p. 77,) in the first note, it is said: "It should be observed at the outset that though a will be not properly executed as a will, with subscribing witnesses, it may still be good as a olograph, when that kind of will is allowed, if it answers the requirements of the statutes as to olographs, though it contain more than the statute requires"; that something more than the statute requires, doubtless referring to an unexecuted attestation clause, as the case of Brown v. Beaver, 3 Jones, (N. C.) 516, is cited. In that case the attestation clause was signed by only one competent witness, one being rejected as incompetent. The will was then proved as a olograph will, and the will was sustained, the court saying: "Going beyond the requisition in respect to proofs cannot annul that which comes up to them." Opinion. The cited case of Harrison v. Burgess is to the same effect. 1 Hawks, 384. The will, having a defective attestation, was nevertheless proved and sustained as a olograph will. The case of Hill v. Bell, decided in the supreme court of North Carolina in 1867, (Phil. [N. C.] 122,) was the case of an olograph will which had appended to it an attestation clause which was unsigned by witnesses, as in this case. The first objection urged against the will was that it contained an unsigned attestation clause, and it was claimed that the testator intended to make and publish it as an attested, and not as a olograph, will, and therefore it was never so completed as to operate as a will. This objection was overruled upon the authority of Harrison v. Burgess and Brown v. Beaver, supra. The court said: "The declaration made by the decedent in the present case, that he wished to obtain the subscription of witnesses to his will, though strengthened by an attestation clause, cannot be of more avail against its validity than was the actual attestation in the cases referred to.” By the statute in that State an olograph will is required to be in the handwriting of such deceased person, with his name subscribed thereto, or inserted in some part of such will, and the will shall be proved by three credible witnesses to be entirely in his handwriting, (Rev. Code N. C., ch. 119, § 1, p. 606,) and when these and other requisites of the statute, as to deposit, etc., have been complied with, such wills have been sustained, notwithstanding the design may have existed in the testator's mind to go further and have it witnessed, and this upon the ground that all had been done which the statute required to be done, and that more could not lawfully be required. In the case of Devecmon v. Deveemon, 43 Md., 335, decided in the court of appeals of Maryland in 1875, the will contained an unsigned attestation clause, and purported to devise both real and personal estate. The incompleteness of the will, in that the attestation clause was not signed, was held to raise a presumption against it, and that this presumption was strength Opinion. ened because the instrument purported to dispose of real estate as well as personal property. Although wholly in the handwriting of the deceased, it was incomplete to dispose of real estate, without witnesses, under the law of that State. Code Md., art. 93, § 301. This will was, therefore, upon its face incomplete, and therefore the finality of intention not appearing upon the will, it was necessary to prove it, which was done, and the will admitted as a will of personal estate. It was void as a will to pass real estate, as we have seen. In the case of Plater v Groome, 3 Md., 134, the court said: “When a paper is unfinished, the presumption of law is strong against it; and if there be added to the paper the attestation clause, and the names of the witnesses be omitted, and the signature of the testator be wanting, and the blanks remain unfilled, these circumstances will raise a presumption that the deceased had either abandoned his intention of executing the instrument or that he never fully made up his mind on the subject.” These cases, and all similar cases, are widely different from this case, and are readily distinguished. They are cases where something essential remained to be done. In a case where a will purports to devise real and personal estate, and the will is incomplete, imperfected, so as to devise both, the fact that all has been done which is necessary to pass one species of property does not disturb the presumption against the finality of the intention. It is, nevertheless, an incomplete instrument. The finality of intention applies to the will, not to any particular species of property devised. The intention not appearing in such case upon the face of the will, the paper is insufficient, standing alone. But if the question to be determined is as to the finality of intention, what presumption of this sort could a court discover when the whole will, standing alone, and considered as a whole, indicated and exhibited a complete achievement of every purpose manifested therein; and so the same court which decided the case of Devecmon v. Devecmon had already rendered a deci |