dissenting, said:
I dissent from the opinion of the court in this case. In my judgment, the law was rightly propounded to the jury by the circuit court in relation to the effect of the unsigned attestation clause at the foot of the paper, designated in the record as *371paper No. 1. The argument for the appellants, which is sustained by the court, is, that the paper being wholly in the handwriting of the deceased, and complete as a will under our statute, without the attestation of witnesses, its validity as a will is not affected by the annexation of the attestation clause, because the addition of the clause was an act of supererogation.
This view, though at first blush plausible, is not sound. The real question, I take it, is not merely whether the requirements of the .statute have been fully complied with, but whether the deceased had done everything that in his apprehension of the paper in question it was necessary to do, or that he intended to do, or to have done, before completing it,as his will. And the presumption arising from the unsigned attestation clause is, that he did not regard it as a completed instrument, or as a final and concluded act. This is a well-settled rule relating to wills, if judicial decisions, almost without number, can settle anything. The law upon the subject is well stated by an eminent author as follows: “ An attestation clause [annexed to a will] without witnesses makes the paper an unfinished instrument, even where it is signed by the testator, and the presumption of law is against such papers, even where the attestation by .witnesses is not indispensable, and when offered for probate it must be rebutted.” Redfield, Wills, 213, note 29. See also 1 Wms., Ex’ors, marg. p. 84; 1 Jarman, Wills, 244; 1 Tuck., Comm., 385-6.
In Beatty v. Beatty, 1 Adams’ Reports, 154, a case often cited, and which, I think, is not.only applicable to, hut is conclusive of, the question before us, Sir John Niekoll, in delivering judgment, said: “The paper-propounded would he clearly entitled to probate but for the attestation clause. It is all in the deceased’s handwriting; it is signed and dated; it appoints an executrix; it is a complete disposition of personal property, and the deceased had no real estate to suggest to him the necessity of executing his will in the presence of witnesses. *372But if a testamentary paper be imperfect, either in itself or in the writer’s apprehension of it, it can only be entitled to probate on proof being furnished of his having been prevented by what is technically called the ‘ act of God ’ from completing it. As, therefore, the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is, that the writer meant to execute it in the presence of witnesses, and that it was incomplete, in his apprehension of it, till that operation was performed, the presumption of law is against a testamentary paper with an attestation clause not subscribed by witnesses,” though the presumption, he added (as the circuit court in the present case instructed the jury), was only a slight one. And in a note,to the. case, it is said that this was the. doctrine of the English courts of probate from an early period, until the decision in Cobbold v. Baas in 1781, which was speedily overruled.
The English cases to the same effect are numerous. Many of them are cited by the text-writers on the subject, and need not be particularly referred to here. Nor have I been able to find, after diligent search, any case decided in England, before our revolution, in which the contrary has been held. It was asserted in the argument at the bar, that there were such decisions, but not one was cited, nor are any cited by the court in Watts v. Public adm’r, 4 Wend., 168—a case much relied on by the appellants—though the chief justice who delivered the opinion seemed to think there were such cases. The learned and elaborate opinion of Chancellor Walworth, from whose decision the appeal in that case was taken, and which is reported in 1 Paige, 347, is, to my mind, conclusive upon th.e point. Besides, the decision .of the case in 4th Wendell, proceeded on the ground that the presumption against the paper propounded as a will, was rebutted by the evidence.
Much reliance was also placed in the argument upon the case of Brown v. Tilden, 5 Harr. & J., 371. The facts of that case were peculiar, and of it it was said by the court of appeals *373of Maryland in the subsequent case of Plater v. Groome, 3 Md., 134, that the strong language used in the opinion must he taken as having exclusive reference to the particular facts of the case. And in Plater v. Groome, as well as in Barnes v. Syester, 14 Md., 507, and in the recent case of Devecmon v. Devecmon, 43 Md., 335, the principle decided in Beatty v. Beatty, supra, was fully recognized as a part of the law of Maryland.
I am of opinion that it is equally - applicable here, as a part of the law of Virginia; for while the statute permits a holograph will to be made without the necessity for attestation by witnesses, it does not prohibit the making of an attested will, and, therefore, it seems to me the same presumption arises of a want of a final testamentary intent- in respect to a paper like the one in question, .as was held to arise in the case of Beatty v. Beatty. An attestation by witnesses was no more required by the English statute to make the paper propounded in that case a valid will of personalty, than our statute requires a holograph will to be attested by witnesses, and yet it was held that the unsigned attestation clause in that case gave rise to a presumption against the paper as a will, which was not rebutted by the evidence adduced.
Indeed, it seems to me that this view has been substantially adopted by this court as a sound legal principle, in the ease of Waller v. Waller, 1 Gratt., 465, as that decision was explained in Ramsey v. Ramsey, 13 Gratt., 664. In the first-mentioned case, Judge Baldwin concurred in the opinion of Judge Allen, while Judge Stanard concurred in reversing the judgment, without concurring in Judge Allen’s opinion, and Judge Brooke dissented. So that Judge Allen’s opinion was not the opinion of the court. Cabell, P., gave an opinion of his own, in which he held that the paper propounded in that case could not be regarded as a final and concluded act, not alone because of the fact that it was not signed, hut also because it was not acknowledged in the presence of witnessess. The paper was wholly in the handwriting of the deceased, and purported to *374dispose of the whole of his estate, real and personal, and concluded thus: “In witness whereof, I have hereunto set my hand, this — day of-, 1841.
Signed and acknowledged in the presence of-.”
Judge Cabell said the paper bore evidence on its face that the decedent did not regard it as a final and concluded act; that he intended something further to be done, namely, that it should be signed and achnoiuledged to be his will in the presence of witnesses, and upon this ground he concurred in reversing the judgment of the lower court admitting the paper to record. And in Ramsey v. Ramsey, it was said by Judge Daniel, in whose opinion Judge Allen and the whole court concurred, that the decision in Waller v. Waller cannot be held as declaring any principle broader than that announced in the opinion of Judge Cabell, a principle, it seems to me, in harmony not only with the ruling of the circuit court in the present case, and with the decision in Beatty v. Beatty and a long line of like decisions, but with common sense as well.
It seems somehow, to be supposed, moreover, that a question of revocation arises in the case, and much has been said upon that point. To my mind all this is irrelevant. The question here is not whether a will has been revoked, but whether a will has been made; and I will only add in this connection, that the presumption above mentioned in respect to the paper in question, instead of being rebutted, is strengthened by the evidence in the case;
As to the paper designated as Ho. 2,1 will say only a few words. It was executed on the same day with paper Uo. 1, and is as follows: “ I do not charge any of my children with any thing I may have given them before my death. The $1,000 for my daughter, Mary, is to be paid to her, and then she is to have equal of the balance. (Signed) J. "W. Jones, May 14th, 1862.” I am satisfied from the record that this paper preceded the writing of paper Uo. 1, and was intended as a memorandum merely, though many years afterwards *375found in an out house folded up with that paper. But be that as it may, it does not. expressly refer to paper ífo. 1, and there is nothing in the case to warrant the conclusion that it refers to it at all; so that it cannot operate, in my opinion, as a codicil, republishing paper bib. 1 as a will (1 Lom. Ex’ors, 62) and it is equally clear that, standing alone, it is not entitled to he probated as a will, because altogether too vague and indefinite. The case of Gibson v. Gibson, 28 Gratt., 44, is an authority upon this point.
Many other important questions were discussed in the argument at the bar, hut as the court has not found it necessary to pass upon them, I make no allusion to them. I think the opinion just delivered is contrary to the settled law, as it is laid down by all the text-writers, and as it has been expounded by the courts, and I respectfully, hut most emphatically, dissent from its conclusions.
Judgment reversed.