26 Wis. 686 | Wis. | 1870
The important point in this controversy is the genuineness of the letter of November 23,
The other objection, namely, that it was incompetent for the same witnesses to state their opinion that the letter was genuine, is less difficult. This was clearly not a matter within the prohibition of the statute. It was not a transaction or communication had personally with the deceased, but an opinion founded on knowledge and experience derived from long correspondence with him and familiarity with his handwriting.
Considering the testimony of these parties, therefore, we think the preponderance of evidence sustains the genuineness of the letter. Their testimony seems truthful. It was given with fairness and candor, and we are impressed with the idea that it is true. There is much in the case to corroborate and nothing to discredit it, save only the testimony of the opposing., witnesses on the subject of the, handwriting. This latter is matter of mere opinion. It is the opinion of witnesses to aid or influence the opinion of the court or jury. The unsatisfactory nature of such evidence is well known. The facility with which great numbers of witnesses may be marshalled on both sides of such a question, all calling themselves experts, and each anxious to display his skill and ingenuity in detecting the false or pointing out the true, and equally honest and confident that his own theory or opinion is the only correct one, and yet all on one side directly opposing all on the other, admonishes us of the fallibility of such testimony, and of the great degree of allowance with which it
But, as has already been said, the testimony of these parties is strongly corroborated by other proofs in the case. The letter of November 12th, 1861, is admitted to be genuine. Both that letter and the letter of November 23d were written while Dr. Foster was very sick. It was supposed that he would not recover. In the letter of November 12th, Mr. Fox said,. among other things: “TelLthe Doct. not to give up; all will be right about the homestead, as I have always promised you, and I hope for the best in the settlement of his other matters.” The mortgage in question was upon the homestead, and it was that which was to deprive Mrs. Foster of it, if she lost it in the event of her husband’s death. It is argued that Mr. Fox intended no more by the language than that, in the event of the Doctor’s death, he would not press payment of the mortgage, or proceed to an immediate foreclosure. This does not satisfy the language, nor come up to the spirit and intent of the writer. It would be a strange way to make “ all * * right about the homestead,” to hold a mortgage over it by which its value was destroyed and the title of the occupant liable to be swept away at any moment. We cannot believe that this was what Mr. Fox meant when he said “ all will be right about the homestead, as I have always promised you.” The evidence discloses the intimate and confidential relations existing between the parties. It shows also that Mr. Fox was indebted, or under great obligations, to Dr. Foster for past services, and was obliged both to him and to Mrs. Foster for very many acts of kindness, hospitality and attention. He no doubt remembered and intended to reward them for these, and had promised to do so by discharging the mortgage, which was the only thing that would make “ all * * right about the homestead,” in the language of the letter. It was to this promise, we think, reference was made,
The views thus expressed are decisive of this case, and it follows that the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.