Peake v. Jenkins

Citations

• 80 Va. 293
• 1885 Va. LEXIS 66

Syllabus

<p>1. Wills — Attestation.—Code 1873, chapter 118, section 4, requires the attestation of two subscribing witnesses, but no particular form, or place on the paper, yet the witnesses, unless the will be olograph, must subscribe as witnesses, though the word “witness” need not appear.</p> <p>2. Idem — Case at bar. — Instrument propounded as the will of J. is wholly written by H. and signed “J. by H.” and is attested “Witness: L.” L. being dead, the instrument is probated on the testimony of H. as a subscribing witness.</p> <p>Held :</p> <p>1. The instrument was not attested pursuant to the statute.</p> <p>2. H. did not subscribe “as a witness,” and could not attest the will.</p> <p>3. Idem — Testamentary—Case at bar. — Instrument dated 13th April, 1870, speaks of “ the testatrix ” in the third person, and merely recites that she had spoken to the amanuensis “ of her wish to make a will to secure to her son J. $200 a year for every year he had been staying at home with her since his father’s death,” and that on 3rd of January, 1870, she had asked the amanuensis “ to write her will for her to copy,” &c.</p> <p>Held :</p> <p>The instrument is not testamentary in its character.</p> <p>4. Idem — Cases compared. — Pollock v. Glassell, 2 Gratt., 440, is distinguished from case at bar in that, though there the name of the witness was put to the paper, not as a witness, but for some other purpose, yet the testatrix requested the witness to alter the paper, and the witness adopted her signature already there; whilst here, the witness signed as emanuensis, and was not requested to attest the paper.</p>