Draper v. Pauley

Present: All the Justices

JOHN W. DRAPER, ET AL.

v. Record No. 960761 OPINION BY JUSTICE ELIZABETH B. LACY
January 10, 1997
PATRICIA PAULEY

IN THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

In this appeal, we determine whether the signatures of the

testator and subscribing witnesses to a testamentary document

comply with the requirements of Code § 64.1-49.
Irene Draper and her brother lived with their niece

Patricia Pauley and her family for a number of years. In March

1995, Draper was a patient at Martha Jefferson Hospital in

Charlottesville. On March 1, Pauley, Alice Butler, Darlene

Butler, and two children visited Draper at the hospital.

During this visit, Draper indicated she wanted to execute a

will. Tracy Collier, a hospital employee who was a notary

public, was called to Draper's room. When she arrived, Collier

wrote the following at the top of each of two blank pieces of

paper:
This is to verify that the signature below is the
true signature of Irene Draper.

This statement was followed by Draper's signature and Collier's

attestation as notary public.

Draper then began to dictate her testamentary disposition

of a house she owned. Pauley took the first piece of paper

and, below Draper's notarized signature, transcribed Draper's

statement that, if anything should happen to her, she wanted

Pauley to have the house. When Pauley finished writing, she
read the document back to Draper, who stated that the document

was exactly as she wanted it. Then Darlene Butler signed the

document beside Collier's name.

Draper died on September 4, 1995. The clerk of the

Albemarle County Circuit Court admitted the March 1, 1995

document to probate as a valid will. Draper's two sons, John

W. and Charles E. Draper, appealed the clerk's order, alleging

that the will was not valid. The trial court held that the

clerk properly admitted the will to probate because the

signatures of Draper, Butler, and Pauley met the attestation

requirements of Code § 64.1-49. The trial court also held,

however, that the signature of Collier did not qualify as that

of a witness under the statute. Draper's sons filed an appeal.

Pauley assigned cross-error challenging the trial court's

determination that Collier did not qualify as a subscribing

witness. Because we conclude that the March 1, 1995 document

complied with the requirements of § 64.1-49 for a valid will,

we will affirm the judgment of the trial court.
Section 64.1-49 provides in relevant part:
No 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; and moreover, unless it be wholly in the
handwriting of the testator, the signature shall be
made or the will acknowledged by him in the presence
of at least two competent witnesses, present at the
same time; and such witnesses shall subscribe the
will in the presence of the testator, but no form of
attestation shall be necessary.

The purpose of this statute is to prevent fraud, mistake, or

the substitution of documents. It is not intended to place
restraints on the power to execute a will but to guard and

protect that power. It should not be interpreted in a manner

which imposes unnecessary difficulties that adversely affect

the ability to exercise the power. Therefore, the statute

should be given a fair and sound construction with "rigid

insistence" on substantial compliance with its requirements.

Robinson v. Ward, 239 Va. 36, 42, 387 S.E.2d 735, 738 (1990).

Draper's signature on the will in question satisfies the

requirements of the statute, notwithstanding the fact that

Draper signed it before the document contained the disposition

of her property. There is no dispute that the signature is

Draper's and that, following the transcription of the statement

and its recitation back to her, Draper stated that the document

was exactly as she wanted it. Under these circumstances, the

signature was "intended as a signature" and the "will

acknowledged" by Draper in the presence of "at least two

competent witnesses" in satisfaction of the requirements for a

valid will contained in § 64.1-49.
Likewise, at least two competent witnesses subscribed the

will in the presence of the testator. All parties agreed that

Darlene Butler's signature satisfied the statutory

requirements. Pauley's signature was contained in the body of

the document and was made when she was transcribing Draper's

instruction that Pauley was to receive the house. The

contestants' argument that subscription by a witness to the

will in this manner is insufficient was addressed and answered

in Robinson. In that case, the scrivener of the will wrote her
name as one of the legatees under the terms of the will; there

was no separate signature of the scrivener. Writing one's name

in the body of the will was held to substantially comply with

the statutory requirements for a subscribing witness because

the scrivener/witness acted as a witness to the execution of

the will by the testator, was present when a second witness

subscribed to the will, and the transaction was free of fraud.

Id. at 44, 387 S.E.2d at 740.
The facts in Robinson and this case are virtually

identical, and the holding in Robinson is applicable here.

There are no suggestions of fraud or duress. Pauley wrote her

name in the body of the will, witnessed the execution and

preparation of the will by the testator and, in the presence of

the testator, witnessed the subscription of the will by the

other witness, Butler. Under these circumstances, Pauley, like

the witness/scrivener in Robinson, was a subscribing witness to

Draper's will within the meaning of § 64.1-49. Therefore, the

trial court was correct in holding that the will was properly
*
admitted to probate.
Accordingly, we will affirm the judgment of the trial

court.

Affirmed.
JUSTICE KOONTZ, with whom CHIEF JUSTICE CARRICO joins,
dissenting.

I respectfully dissent. In my view, the facts of this case

*
In light of this holding, we need not reach the issue
presented in the assignment of cross-error.
give rise to the same concerns for the application of Code

§ 64.1-49 that were expressed by the dissent in Robinson v. Ward,

239 Va. 36, 45, 387 S.E.2d 735, 740 (1990). For the reasons

stated more fully there, I would reverse the judgment of the

trial court.