McBride v. McBride

Citations

• 26 Va. 476
• 26 Gratt. 476

Syllabus

<p>x. It is not necessary to the validity of a will that it should have a testamentary form, or that the decedent should know that he had performed a testamentary act, or that he should intend to perform such act. If the paper contains a disposition of the property to take effect after the death of the testator, though it was not intended to be a will, but an instrument of a different shape, yet if it cannot operate in the character intended, it may operate as a testamentary act.</p> <p>2. It is not necessary that the paper should be the identical one intended by. the testator for his last will. If the instrument has once received the sanction of the testator as the final disposition of his property, it will so remain until revoked or cancelled in a way prescribed by the statute, though he may have always intended to make another will.</p> <p>3. It is necessary, however, that the instrument, whatever it may be, whether note, deed, letter, or settlement, should have been designed to operate as a disposition of his property. That identical paper must have been intended to take effect in some form. It must have been written animo testandi.</p> <p>4. But where the draft or notes of a will embody the provisions actually designed by the testator with reference to his property, and declare the settled purposes of the testator, they will be established as his will, although his purpose may have been to extend the notes or draft into a more regular form. This, however, is only permitted where the testator is prevented by the act of God from completing the instrument in the form in which he designed it. And even in such a case it is essential that the paper shall contain the final determination of the testator with regard to the disposition of his property.</p> <p>.5. In all other cases, the paper offered for probate must have been designed thereby to dispose of his properly. He must have looked to that paper as the means by which an object was to be accomplished, audthat obj