56 F. 384 | U.S. Circuit Court for the District of Oregon | 1892
This is a suit in equity to obtain a decree for the discovery, production, and cancellation of a certain deed and will purporting to have been made by Mrs. Philinda Terwilliger, and to enjoin the defendant James Terwilliger, her husband, from selling or disposing of any of the property described in the bill, beyond the term of his estate therein as tenant by the curtesy. The bill, after stating that James Terwilliger and Phi-linda Terwilliger became the owners of 630.34 acres of land in Multnomah county, Or., under the donation law; that the east half of said land was designated by the surveyor general to be held by said Philinda Terwilliger in her own right; that said Philinda Terwilliger, while still seised of about 150 acres of the east half of said claim, of the value of about $25,000 at the time of her death, died intestate, leaving her son, William O. Green, by her first husband, and her daughter, Mrs. Julia V. Richardson, by her second husband, her sole heirs, succeeding to the inheritance of all her real property, subject only to the estate by the curtesy therein of her husband; that complainants are the heirs, and have succeeded to the interest, of W. O. Green, — states, among other things, that the defendants “have informed your orators that said Philinda Terwilliger had willed all of her said property to her said daughter, Julia, to the entire, exclusion of your orators, and that the defendants had the will in their possession; and at other times defendants have stated that said Philinda Terwilliger had deeded said real property to said Julia, and that said James Terwilliger had the deed. Your orators are informed and believe, and allege, that the defendants have such a pretended will or pretended deed ■in their possession, or under their control; but your orators allege and charge that any will and any deed which the defendants have, or either of them has, or under which the defendants claim, or cither of them claims, which purports, to divest your orators of any right or interest which they have, as aforesaid, in the said estate of Philinda Terwilliger, as heirs at law, is a false, forged, and fraudulent instrument.” The word “forged” was not in the bill, as originally filed, but, after the will had been produced, was inserted, by leave of the court. Complainants are citizens of the state of California. Defendants 'are citizens of Oregon. A demurrer was interposed to the bill upon the ground that this court had no jurisdiction of the case. This demurrer was overruled. De
On the oral argument, defendants, for the first time, claimed that complainants’ claim, as made in the bill, was stale. If the bill was defective in not stating at what particular time complainants were informed of the existence of the disputed documents, it might have been made inore specific in this respect, if objections or exceptions had been timely made, and the fact considered essential; but upon the pleadings, and under all ihe facts and circumstances and character of this case, the defendants are not, in my opinion, in a position to make this claim.
The questions submitted to the court are principally questions of fact. The contention on the part of the complainants is that the deed and will are forged instruments, and are invalid. The. contention of the defendants is that the deed and will are genuine and valid. '
From the testimony it appears that Philinda Terwiiliger was born in 1812; that her maiden name was Philinda Lee; that she was married to John H. Oreen in 1829; that in 3847 she, with her husband and their children, consisting of two sons, named, respectively, William O. and Calvin B. Green, and one daughter, accompanied by her brother Philister Lee and Ms family, started ■across the plains for Oregon; that in crossing-Snake river her husband was drowned; that the families continued the journey to Portland, Or.; that iheir daughter died soon after arrival; that the means of Philinda. and her children were limited, consisting of two yoke of oxen, two wagons, some cattle, and a little bedding; that the son William O. was then 17 years of age, and Calvin 10 years of age; that in the spring of 1848 the widow, Philinda Green, married James Terwiiliger, (one of the defendants,) who was then a widower with children; that after their marriage they settled upon a section of forest land about three miles from the town of Portland, then of no gteaf value; that in 1809 a patent, was obtained from the government of the United States for this land, consisting of 630.34 acres; that the east half of this land was designated in the patent to be held by the wife, as by law required, — see Donation Act, (2 1 fill’s Ann. 3mws Or. 1787-1807;) that the land in question is now in the city of Portland, and is of about the value of $300,000; that after the last marriage two daughters were born, — the eldest, named Mary, who died' when 12 years of age, and Julia Viola, who subsequently married Thomas M. Iticli-ardson, one of the defendants; that Julia died shortly before the argument of this case; that James Terwiiliger and his wife continued to reside upon the east half of the donation claim until her death, which occurred October 19, 1873; that the husband is still living at the family residence upon said land, and is now about 84 years of age; that he is still Hie owner of the entire west half of the donation claim, and is now in possession of die unsold portion of the east half as tenant by the curtesy, having a life estate
The deed in dispute is marked “Exhibit X,” and reads as follows:
Know ah men by these presents: That I, Philinda Terwilliger, of the County of Multnomah, State of Oregon, for and in conciderartion of one dollar in hand paid me by my daughter, Julia Y. Terwilliger, of the same County and State, do hereby- sell, bargan, grant and convey unto my daughter, Julia Y. Terwilliger, the following described tract of land; east half of the Donation Claim, No. 39, in soctian nine, ten, 15 and 10, township one south range one east, it being the Donation Claim of James Terwilliger and Philinda Terwilli-ger in County and State aforsaid, all of the said Land that is not disbosed of after my death and the death of my husband James Terwilliger Shal belong to my daughter Julia V. Terwilliger in hur own Right forever after ower death.
In testimony whareof i have hereinto set my hand and seals this second day of September In the year of ower Lord 1872.
Philinda Terwilliger.
A. Higgins.
Witness James Terwilliger.
William Terwilliger.
It will be observed this instrument, although, signed by Philinda Terwilliger and her husband, James Terwilliger, purports on its face to be the deed or will of Philinda Terwilliger only. Her name is written first in this deed, while in all other documents signed by them his tame is written first. The peculiar manner in which the instrument is signed by the attesting witnesses has suggested to complainants’ counsel the thought that the names of A. Higgins and William Terwilliger were intended as witnesses to the signature of James Terwilliger, only. William Terwilliger was the youngest brother of James, and died in 1876. A. Higgins, the other witness, could not be found, and is supposed to be dead. There may be some question whether or not this document, if genuine, was not intended as a will, and ihat it should be so treated. If so, then the rights of complainants under the laws of Oregon, which will be hereafter referred to, would not, in any manner, be affected thereby. If it can be treated as a deed, and is genuine, .then it is questionable, to say the least, whether, under the evidence, any sufficient delivery was ever made. A deed may be delivered to a third person as a deed to be delivered to the grantee on the happening of some future event, but the de
Mrs. Elizabeth Cathcart Biniih testifies that she was present, at the residence of James Terwilliger when her then husband, William Terwilliger, was preparing to write a deed, in 1he year 1872; that, prior to that time, William had written a deed, with the contents of which Philinda. was displeased, because it did not give 1o Julia all she wanted her to have; that witness did not see the second deed, and, if she had seen the first’, she paid no attention to it; that, before the second deed was written her husband told lau-to go home, and that lie was going to write another deed.
James Terwilliger, on being shown the deed, testified as follows:
•‘Question. Do you remember when you iirst. saw Thai, instrument? Answer. It was some time ago. Q. Did you see it befoi-e your wife died? A. Tes. Q. Is that your signature to it there, — ‘James Terwilliger?’ A, I should think I wrote it * * * Q. Can you say that, she signed that? A. Wei), you are a curious man'. 1 have told you that 1 didn't see her sign it. but that is her signature. Q. Do you remember the circumstances under which it was signed? Do you remember anything about the time or circumstances of the execution of this 'instrument? A. Weil, I don’t exactly. Q. Can you tell anything about the instrument, that you remember, — anything of its history, — anything about it, that, you know of? A. Well, it was to my place there for years and years, and I don’t remember exactly when Mrs. Itichard-son took it. She took her papers, hut it was there for years. Q. Do you remember when it first came into your possession? * * * A. Yes, sir. Q. Whore did you keep it there ? A. I described once where the will was kept, mid that was in the same place amongst: her papers. Q. Then you kept this with the will? Do I understand that you kept this instrument along with the will, in the clothospress in a little room adjoining your bedroom, in the house where you reside at the present time, on the Macadam road? A. Yes; T say it was there. * * * Q. Mr. Terwilliger, when was it you first saw this instrument? * * A. It must hare been a good many years ago; probably, shortly after it was written. r do not remember. Q. Do you remember haviug signed it. A. I remember having signed it; yes. Q. Where were you? A. in my house. Q. Do you remember the time? A. I remember the time, but I do not. remember the date. Q. Well, can you describe the time, or fix the time? A. Well, I suppose it was daylight. 1 do not remember 1lie dale. Tt was after it was written. My wife liad signed ii, and she fetched it to me to sign, I know. Q. Did you see her sign her name to this deed, as you call it? A. No, I did not see it before her name was signed. Q. You judge it is her signature, from looking at it. Is that what you say? A. Yes. by looking at it. She would not have handed it to me, I do not suppose, 'if she had not signed it. Q. When was it that you saw that paper; that instrument; that deed, as you call it? * * * A." Well, when slie first fetched it to me, and wanted me to sign it. I think I read it, and signed it, — signed my name to it. * * * Q. Do you know what became of the paper then? A. She took it, and, 1 suppose, put it where it always staid until this suit was commenced. Q. Whore was that place? A. It was in the faille, under the shelves. The shelves came up, and underneath was a table, — a small table, — and it was in the table drawer. That is where she kept her papers. That is where it was.”
Julia Richardson testified that she saw the deed X before her mother died; that she did not see it after her mother’s death, until after this suit was •commenced; that she supposed it was this deed that her mother referred to the night; she died; that her
“I saw it before my motlier’s death, — I think, a short time after it was made, — but I did not read it. She insisted on my reading it, and it always made me feel badly when she would speak of malting her will, or any papers; and I told her I did not wish to read it, and she told me the contents of it. But, the way she held it, I recognized those signatures of Amos Higgins and my mother’s and William Terwilliger. But I did not read the full document, but she told me the contents of it. And I recognize that as my mother’s handwriting, without a doubt, and also father’s and William Terwilliger’s. Mr. Higgins’ handwriting 1 was not acquainted with. * * * Question. Do you remember the time, or about the time, it was that your mother first exhibited this writing to you, as you have just testified? Answer. Well, I don’t remember just the time; no. I think it was just very shortly after it was made. I was not at home, I think, when this was made. * * * Q. When do you remember of seeing it again, next after that time? A. Well, 1 don’t think I ever saw it until this suit commenced. I have no recollection of ever seeing it after her death. My father took control of her papers and her effects after she died. * * * Q. Did she ever speak to you, at any time other than at the time you have testified here, concerning this instrument? A. She has. I don’t know as especially of this instrument, but to the same effect. She has often told me, and often given me good advice, and told me she wanted me to do certain things; that all she had would be mine; that she had provided for William Green, and did not propose that he should get any of her property. She, also, the night she died, called me to her, and told me that everything she had, — she had everything fixed just as she wanted it, and that everything she had was mine.”
The will in question reads as follows:
Know all men by those presents: That I, Philinda Terwilliger, of Mult-nomah County, Oregon, feeling the uncertainty of life and being of sound mind and memory, and wishing my estate to be disposed of as seems to me right, do make, publish and declare this my last will and testament as follows, viz:
First, I devise, give and bequeath to my daughter, Julia Viola Terwilliger, of Multnomah County, Oregon, the house and furniture in which we now live, and also the' undivided east half of the James Terwilliger Donation Band Claim that may not have been sold, at the time of my decease.
Second, I give and bequeath to my son, Wm. O. Green, of Washington Territory, my clock which I brought across the plains.
In testimony whereof I have set my hand and seal this fourteenth day of August, eighteen hundred and seventy-three.
Philinda Terwilliger. [Seal.]
In presence of
John Orvis Waterman, John Terwilliger,
Witnesses.
Within a month after the commencement of this suit the defendants appeared in the county court of Multnomah county, at Portland, Or., and there produced and filed the will for probate.. Proofs .of the execution of the will were then made by the ex parte affidavits of John Orvis "Waterman, James Terwilliger, and his daughter, Mi’s. Julia V. Richardson, and the will was then admitted to probate in “common form,” and is ,on file and of- record in the office of the county clerk of Multnomah county. It has been produced for inspection in this court by the attendance of the clerk or his deputy. After the production of the will, complainants made photo
Pliilinda Terwiiliger Bibile
Defendants also produced an old, unsigned, one-dollar bank bill, dated September 20, 1816, which had apparently been used as a book mark in the Bible, on the back of which was written the words:
this is mine, Philinda Terwiiliger.
They also introduced an old school reader published in 1825, on the front page of which is some scribbling, and the name “Philester Lee,” and on the second page is the written name “Philinda Lee.” They also introduced an old Hudson Bay Company receipt, dated July 24, 1856, upon the back of which appeared the following writing:
Philinda. Philinda Terwiiliger.
Philinda
Terwiiliger
Portland
•James Terwiiliger and Mrs. Julia Y. Richardson testified that they recognized the signatures in these exhibits as being in the handwriting of Philinda Terwiiliger. Mrs. Mary Terwiiliger, daughter-iñ-law of James Terwiiliger*, testified that in 1870 Mrs. Philinda Terwiiliger told witness that she had written her name in the Bible and on the bank bill. Complainants objected to these exhibits upon the ground that there was not sufficient testimony to establish the fact that any of the writing thereon was the genuine writing or signature of Philinda Terwiiliger. There was some testimony to the effect that Philinda had used a Spencerian copy book, on nearly every page of which she had written her name. Defendants were unable to find this book, and James Terwiiliger, in his testimony, says that the children might have destroyed it; that he thought they had destroyed it.
If testimony is admissible at all, as to comparisons of handwriting, it is important, in the first instance, to have a genuine signature admitted or proven beyond all doubt or cavil. “Wherever proof of handwriting by comparison is permitted, it will be found that great care is taken that the standard of comparison shall be genuine. The reason of this rule is obvious. Under tlie English statute, comparison of disputed writing is allowable only with the writing proved to the satisfaction of the court to be genuine; and the American tribunals which have refused to follow the common-law rule on the subject of proving handwriting by comparison have been no less careful than the English legislators to see that the standards of comparison shall be beyond suspicion, for it is plain that, if there he anj controversy as to the genuineness of the specimens with which the comparison is to be made, all the evils pointed out by the opponents of this species of proof become apparent, and a number of collateral issues are in each case at once raised.” Laws. Exp. Ev. p. 408. Bee, also, Bog. Exp. Test. p.
Complainants introduced the testimony of Edwin M. Arthur, paying teller in Ladd & Tilton’s bank; Herman Yarwig, paying reller in the Portland Savings Bank; Hardy 0. Workman, formerly paying teller, and now cashier, in the Commercial National Bank; David W. Ross, paying teller in the First National Bank; W. V. Spencer, who had liad many years of experience as paying teller and cashier in various banks; A. 0. O. Davis, paying teller in the Merchants’ National Bank; and Charles F. Patterson, manager of the Western Union Telegraph Company, — all of Portland, Or.; men who, by the necessities of their occupations and business, are often required to carefully examine handwriting, especially of signatures, for the purpose of avoiding the payment of forged checks. Each of said witnesses, upon a comparison of the handwriting of the signature “Philinda Terwilliger” to the deed X and (lie will with her admitted signatures upon ¡he standards, testified that in his opinion the signatures to the deed X and to the will were forged. Complainants also introduced the expert testimony of Edward Failing, of Portland, and Mr. Hickox’ and Mi'. Hyde, of San Francisco, Cal., who testified to the same effect, and gave, at great length, the reasons for their opinions. The defendants introduced three experts, — Theodore B. Wilcox, a banker of Portland, Or.; D. F. Sherman, cashier of the Oiegon Hal «mal Bank, at Portland; and Dr. R. U. Piper, oí Washington, D. C., — who, from the same comparisons, testified that in their opinion the signatures of Philinda Terwilliger to the deed X and to (he will were genuine. Defendants also introduced several persons who claimed io be well acquainted with the handwriting of John Terwilliger, and that his signature to the will as a witness was, in their opinion, his genuine signature. The genuineness of William Terwilliger as a witness to deed X. is admitted.
Tiie arguments of counsel were principally directed to a discussion, review, and criticism of the testimony of the professional experts Mr. Hyde and Dr. Piper. These witnesses prepared a, great, number of plates and tables showing the signatures and letters of each signature to the deed X and to the will, and the comparisons thereof with the admitted signatures of Philinda' Ter-williger and John Terwilliger to the various exhibits offered in evidence. Some of the table's prepared by Dr. Piper make comparisons of the signature of Philinda Terwilliger with the signature of her name as found in the Bible and on the hank bill. All of the tables prepared by him were made by the aid of his microscope and camera lucida. Enlarged photograph copies,
The testimony of John Orvis Waterman to the execution of the will is direct and positive. At the time of giving his testimony, two years ago, he was 65 years of age. He testified in chief that he came to Portland in May, 1851; that at one time he was publishing printer of a daily newspaper; that he was probate judge of Washington county three years, elected in 1853; that from 1857 to 1861 he was surveyor and inspector of the port of Portland; that he was postmaster in Portland for six months in 1853; that during his residence in Portland he became intimately acquainted with James and Philinda Terwilliger; that just after the great fire in Portland, in August, 1873, he wrote the will of Philinda Terwilliger, at her request; that he obtained from her a knowledge of the disposition she desired to make of her property; that she said to him that “she wished to arrange her business, and to give Julia her property;” that the will was written at the residence of the family; that Philinda Terwilliger was in her usual health; that she signed the will in his presence, and in the presence of John Terwilliger, and that he and John Terwilliger signed their respective names as witnesses to her signature; that no other person was present; that, after the will was written and witnessed, it was put into an envelope, and handed to Philinda Terwilliger; that he never spoke to any one about the will, and never saw it, after its execution, until in March, 1889, at the residence of James Terwilliger, about the date when it was probated in the county court. The cross-examination of this witness was very lengthy. He repeated the history of his life, gave the' occupations in which he had at various times been engaged, either as editor, publisher, or reporter; that in 1808 he was elected a justice of the peace, and served two years; that he had been employed at Lake River, in a store; that he had taught several district schools at different country places; that at times he boarded round with the scholars; that he received small salaries, and had few pupils; that he was married in 1855; that his wife procured a divorce from him in 1861; that he “used to drink with the boys and men about town;” and that he occasionally drank to excess. To quote his own language: “I never got so drunk but what I knew what I
“Answer. I first learned it — 1 think John Terwilliger probably told mono!; long after she made it, but she didn't say nothing about it, and I didn’i. In fact, I didn’t rare much about it, and before she died she and I had a considerable long talk. Only a, short time before she died she requested me so and so about Julia, — to look after her tilings so and so; and she said, says she, ‘The papers, you will find them in such a drawer, with my papers; and they are all right, just as I want them.’ But says I, ‘Are you sure they are all right?’ She says, ‘Yes, they are all right.’ Well, that’s the last of it for some time afterwards. Question. Did she say anything to you at that time about what disposition she had made of her property? A. Not exactly, no. She told me before that what she intended to do. Q. Did you fiud the papers, after her death, where she said they were? A. Yes, sir. Q. Who was present when you found them? A. I guess no one. Q. Wliat was yout-idea for keeping the papers so long? A. Well, I supposed a will was just as good to keep it as long as I lived, or longer, for that matter, so it came to light. Q. Do you remember of any person connected with the estate of William O. Green calling at your house to see the papers, or ask to see the papers, at any time? A. No. William O. Green* came there once. I was sick at tlie time, and the last time he was there he agreed to come back again. That was the time 1 calculated to show it to him, but lie didn’t come. !!<> went to Tibbets, and from there he went home.. Q. And did not return? A. No. Q. You had the papers at that time, did you? A. Yes. Q. Do you remember about how many years yon kept them? A. In all? Q. Yes. A. Probably 16 or 17; 16, probably. Somewhere along there. I could not tell exactly. Q. You had the care and possession of them during all that time, did you? A. Yes; they were there, and nobody else had thorn, and nobody else tampered with them, — not until after this suit commenced. Q. What was done with the papers after this suit was commenced? A. Well, after this suit was commenced, Mrs. Kicliardson came up there, and she and I went and got them. She took them.' They belonged to her. Q. You found them whore yon supposed they were, did you? A. Yes. Q. By these papers giveu to Mrs. Kicliardson, do you refer to this deed that was shown*398 to you to-day, and the will? A. Tes, sir. * * * Q. Did you ever show the will to anybody, from the time you found it until the commencement of this suit? A. I think not. X don’t remember that I ever did. Q. Did you ever tell any one about it during that timo? A. I don’t remember. I didn’t talk about these things much. I don’t remember that I did. * * * Q. Did you know, all the Ame you kept this deed from your wife to Julia, which you kept for 1G or 17 years in the elotliespress along with the will,— did you know -that the deed was not recorded? A. 1 knew it was not, yes; of course, when I read it. Q. Xou knew, then, all the time you were keeping it 'there, that it was not recorded? A. Yes; I knew that, of course, and I supposed, probably, that, after the will was made, the deed, as it hadn’t been acknowledged or recorded, — I supposed, probably, that was good for ‘nichts,’ (nix,) as the Dutchman says. But that is only my supposition. But the will, I never supposed it made any difference, — and I don’t yet, — whether it is probated or not. Q. 1-Iow did you come to have that opinion of the will? A. Well, because I have read about so many hundreds of them in my life. Q. 'What was it you read and understood about a will, in regard to recording? A. Well, if a will turned up, and had never been probated; and I think I have read that even if the witnesses were dead, but circumstances, and so on, that the will stood good. Q. Where did you read that? A. I have read it in papers. Q. A long time ago? A. Yes, a good while ago; and some wills not such a great while ago. Q. You always understood that was the law, did you, with regard to wills? A. Well, yes. If it was substantiated, it was good; that is, if a person could make anything good. Q. Did you not also know that wills were customarily or commonly probated promptly, and soon after the death of the testator, or the person who made the will? Was not that known to you to be customary and common? A. It appears it is customary, some places, amongst some people, to read the will at the time they are buried; and others, at any time when they see fli; and, at others, lay for years, — some, for a good many years. But if a willj or deed was destroyed, in my opinion, and the witnesses remembered the circumstances and everything, I believe it is Just as good as the original document. * * * Q. Did you not testify a while ago that you had calculated to tell William Green? * * A. Yes. I calculated to show him the will then, and his wife was there, and said something about the clod-, and I told her it was in the dining room. I told her she could take it home, if she wanted to, but she didn’t. Q. What clock have you reference to? A. That was the one mentioned in the will. Q. Did you ever tell her about the will? A. No, I did not. Q. How did she know of a clock in the will? * * * A. I don’t know as she knew it, but wanted to know if that is the clock they fetched across the plains with them; that one. I told her no. That one, I told her, was in the dining room; and I told her she could take it homo, if she wanted to. She didn’t say whether she would take it or not, but she didn’t take it.”
It appears from Ms testimony that during the 16 years mentioned he took several trips to Tillamook, distant from Portland about 90 miles, and remained there about one month at a time; that in 1878 he took a journey to Europe, and was absent from Portland four months.
Mrs. Julia V. Richardson testified that she did not know of the execution of the will before her mother’s death, and in testifying about Exhibit X the following testimony appears:
“Question. Did she ever speak to you, at any lime other than at the time you have testified here, concerning this instrument? Answer. She has. I don’t, know as especially of this instrument, but to the same effect. She has often told me, and often given me good advice, and told me sbe wanted me to do certain things; that all she had would he mine; that she had provided for William Green, and did not propose that he should get any of her property. Sire, also, the night she died, called me to her, and told me that everything she had, — she had everything fixed just as she wanted It, and*399 that everything she had was mine. Q. Did she ever show you any other instrument which has since been filed as her will? A. No, sir; she never did.”
She further testified that she first saw the will about the time it was probated; that she got it from her father; that the deed X was shown to her at the same time by her father; that she had heard of the existence of the deed X before her mother’s death; that she knew nothing of the will until her uncle, John Terwilliger, told her about it in Tillamook in 1881.;
“Question. What did lie say to you in reference to it? Answer. I was in Tillamook in 3881, and lus asked me if my mother had given me her will when she died. I told him no; and he said she had made a will, and he knew it, and, if she had not given it to me, my father must have it. I said, ‘Uncle ,'Jolm, are you sure she made a will?’ He said, ‘Yes; I know she made a will, and your father has it.’ That was the first 1 ever heard that she had made a will.”
Julia testified that about one year after William O. Green’s death, which was in 1878, his widow, Mary F. Green, came to Portland, and they had a conversation about the property. After repeating the conversation which the witness had with Mrs. Moifatt, a daughter of James Terwilliger, the following testimony is given as to the conversation with Mrs. Green:
“My mother’s and father’s pictures were hanging up over the mantelpiece, — that was the way the conversation came up, — and she spoke about how badly her husband felt that he was not able to see his mother before she died. She said, ‘Julia, I have heard grandma left papers giving everything she had to you.’ And I said, ‘Yes, Mary, she did.’ She said, T don’t believe it.’ ‘Well,’ I said, ‘Mary, she certainly did.’ She said, T don’t believe it. William thought, so much of his mother. She would certainly have given him as much as che did you.’ She did not believe she had done that,-that she had fixed her property in that way. Then I repeated the conversation that my sister had told me that she and niy sister had had; and she says, T will sign nothing.’ I said ‘Mary, I have not asked you 1» sign anything.’ She says, ‘liven if I would sign a paper, how could I sign my children’s rights away.’ I mentioned that I thought she was her children’s guardian, and she said, ‘I am their guardian, but 1 will sign nothing.’ r said, T have not asked you to sign anything.’ I said, ‘Mary, would not you like to see those papers?’ She said, ‘Yes, I would.’ 1 says, ‘When father comes in, if he is willing, I will let you see them.’ Father came in soon after, and I requested him to show her the papers, and he said, ‘All right.’ He went into his bedroom, and unlocked bis clothes press door, — for the lock, you could hear It wiie-n he unlocked it. I did not go in with him, but 1 heard him unlock the dothespress door. She said, T do not want to see the papers. I will not look at them. But if you can produce those papers at the proper time my children and myself will never give you any trouble.’ I told father that she did not wish to look at the papers, and that he need not get them. He said, ‘All right; now, when she gets a chance to look at those papers, she will be glad enough to look at them.’ This is all the conversation I ever had wiili Mrs. Green about those papers, or about any property, that I ever remember.”
After Calvin’s death Ms brother went to Nevada to look after bis estate, and while there sent a letter requesting his mother to give him a power of attorney, so that he could administer upon the estate. A power of attorney was on the 13th of September, 1873, within one month after the will bears date, executed by James Ter-williger, Philinda Terwilliger, and Julia Terwilliger. It was an ordinary power of attorney, simply giving to William the right to administer upon the estate. It did not waive any rights which
“It wasn't a power of attorney exactly; and we made an assignment, understand. My wife, she proposed it, and sent down, and got a lawyer, and— I’ll be hanged if I remember now wliat lawyer. But he came up there, and suggested, probably, it was best, and he told why, and he drew up an assignment; and my wife and I and Julia signed oft all our right, title, and interest to it, which was the same as a power of attorney would he, in order for him to administer on the property that was there.”
Julia Y. Richardson 'testified iu relation to it as follows:
“My brother was murdered, and my older brother, William Green, went to Eureka, Cal., [should he Nevada;] and he could not settle up the business until he received this power of attorney, as we were heirs to my brother’s (?state, as well as lie, and he sent this to get our signatures to it. My mother talked it over with my father, and she. said she thought it would be no more than right to give him everything that belonged to his brother; as everything they had made they had together, and as she had nothing when she married my father, she Intended that that should go to me. She and father had that talk, and she came into the room, and asked me if I was willing. She said, 'I don’t want to influence yon, but, if yon think it is right, will you sign all your right and interest?’ ‘Well,’ I said,.‘if you think it is right, mother, I will.’ And she said, ‘Well, father and I have had this talk, and we think it no more than light, as, everything that is mine will be yours.’ And I signed it willingly.”
Mrs. Elizabeth. Cathcart Smith testified that in August, 1873, she had a conversation with John Terwilliger about the will of Mrs. Philinda Terwilliger. That John came, and told her that “Julia would be a rich woman. * * *” That her mother had willed her all that she had, and that the property was very valuable, and that she would come in for a share of her father’s property. That John 1old her “not to mention it to nobody, and I did not” until Mrs. Philinda Terwilliger died. That at the time of her death she was in the room, and heard a conversation between James Terwilliger and his wife, Philinda. That Philinda told her husband “there is some paper or something, — 1 cannot tell what, — told him there was something- put away in the drawer. She first said, ‘The doctors say I cannot live;’ and he said, “No.’ She says, ‘Yes, I heard them tell Lizzie,’ [meaning Mrs. Smith.] She said, ‘You will get it in the drawer.’ That is what she said. TVhat it was, I do not know. She said: You will get it in my drawer. I will tell you now, while I am able.-’ ” That, after this conversation, Philinda had a talk with Julia; “told her to be a good girl, and to be always as good as she was now, for her mother’s sake; ‘that is all I ask, and all I own is yours.’ ”
Mrs. Mary Terwilliger testified that in the fall of 1873, when she was living at Tillamook, she read of' the death of Philinda Terwilliger in the Oregonian newspaper, and that John Terwilliger then told her that Philinda had made a will, and that it was written by Waterman, and witnessed by himself.
D’ora'Robertson,'formerly the wife of Sol. Terwilliger, a brother
“t liare got done what I wanted to liare done. * * * 1 liare got my will made. * * * I liare willed all my property to Julia. * * * Judge TValennan wrote tlio will, and signed it, and John Terwilliger signed it.”
That she had previously had a conversation with Sirs. Philinda Terwilliger about leaving the property to Julia, when, to quote her testimony:
“She told me slie wanted lier iirst children, that she had hy her first husband, to hare all that she had out of her first husband’s estate, and she wanted to give all that her and ¡Mr. Terwilliger had made during her life to Julia; fliat they had had enough of their father’s property. And then, at the time that Julia was sick, they had to sign a. paper, and I remember her and lUr. Terwilliger talked to Julia, and she says, ‘Julia, we will hare to sign this paper,’ and Julia says, ‘Mr, it will do no good to sign the paper, because, after you are dead, they will come in for (ho property, just the same.’ ‘No,’ ¡Mrs. Terwilliger says, ‘they cannot do that. I hare got that fixed so they cannot do that.’ Those were the words she said.”
Joseph. J. Dawson and William Ralston testified that John Ter-williger, after the death of Philinda, told them that she had made a will, and left all her property to Julia. John seemed to have talked freely about it, hut all the other members of the Terwilliger family were silent.
The question to be determined is not whether Philinda Terwilli-ger ever made a will, but, if it be conceded that she did, is this her will? Does the testimony in this case establish the fact, to the satisfaction of the court, that this will was signed by her? Does the testimony, in like manner, show (.hat the signature to the deed X is her genuine signature? Are both documents genuine, or have they been forged? The contention of defendants is that the genuineness of the signatures of Philinda Terwilliger to botli instruments has been established by positive and direct testimony, and that this character of testimony is entitled to the greatest weight. Is this contention tenable? Is it; supported by the facts, by reason, and by authority? The only evidence to'the genuineness of the signature of Philinda Terwilliger to the will, by persons familial’ with lier handwriting,, is her husband, James Terwilliger, their daughter, .Mrs. Julia V. Richardson, and his daughter-in-law, Mary Terwilliger. The weight and value of this character of testimony depends in some degree upon the frequency with which the witnesses liare liad occasion to notice, and carefully observe, the handwriting, and how recent their opportunities for noticing the handwriting have been. The fact as to whet,her or not the witnesses hare any interest; in establishing the genuineness of the signature is always to he considered, in determining the weight; and value of the testimony. The facts and circumstances testified to, in connection with Hie declaration of Mrs. Philinda Terwilliger in regard to her execution of 'the will, and of her intention to give all her property to Julia, depends to some extent; upon its reasonableness and probabilities — in view of other facts and circumstances that appear in evidence — of its truth or falsity,
The testimony of Waterman is to the effect that he was aware of the laws of Oregon, which require that the children must be mentioned in the will, in order to prevent them from inheriting their share of the estate. 2 Hill’s Ann. Laws, § 3075. If it was the desire and intention of the mother to bequeath all her property to Julia, it was his duty to have called her attention to this law. He testified that he. did not then know that she had any other son than William; that she only spoke of William O. Green. This is unnatural and improbable. Other facts show clearly that she had not forgotten Galvin. At the date of the will she could not have known of Calvin’s death. By a singular coincidence, Galvin was murdered on the same day that the will bears date, but the fact of his death was not known, or his body discovered, for a week thereafter; and the first knowledge which the mother had of his death was received in Portland on the 21st or 22d day of August, 1873, through a telegram from G-. Collyer Bobbins to Walter Moffatt. Why should she have remembered William in the will, and not have mentioned Galvin? If the object of mentioning William was to comply with the law of Oregon, so as to prevent him from inheriting any share of her property, then, of course, Calvin’s name would have been mentioned, also, unless .he had been forgotten. If the old clock, which is not shown to have been of any value, was given to' William as a memento or family relic, then why should she not have picked out some other article, in remembrance of the early associations, to be given to Galvin? It is said, in explanation of this, that the clock belonged to William’s father, and that for this reason it was given to William. This explanation is not supported by the words of the will. The language there is, “My clock, which I brought across the plains.” But, if it was the father’s clock, and if there was nothing else that belonged to the father to give Calvin, is it not reasonable to believe that the mother would have selected something of her own, that she had brought across the plains, to be given to Calvin? The Bible seemed to have been the common property of both husband and wife. It contained the name of the father, as well
When the witness Waterman was asked if Philinda Terwilliger made any explanation at the time as to why she simply gave the clock to William, and the land to Julia, he said:
“Yes, sir; I think she said something about like this: That ho had had his time to make money, and had not helped accumulate any of this, and she wished ,Tulla to have this portion; that the hoy by a former husband had had Iiis time to make money, and had not helped make any of this. That is about the gist of the matter, íliat I remember Mrs. Terwilliger remarked at the lime. That was the reason she wanted Tulia to have this part, — lie had. had his time to make enough for himself. That is the way I understood it at that time, as nearly as 1 can recollect."’
Does it seem reasonable that the mother could have made this statement? William was not the only “boy by a former husband” who “had had his time to make money, and had not helped make any of this.” If she made any statement about her children to Waterman at that time, it would have been natural for her to speak in ’the plural number of her boys, and both, if either, would have been mentioned in the will.
The reasons given for the delay in probating tlie will are another circumstance that is to be considered, and the testimony upon this point is by no means satisfactory. The fact of delay is outside of the ordinary conduct of men. So, also, is the testimony of the discovery of the will. James Terwilliger knew there were some papers in the drawer of the table in the closet, but- he did not examine them. Julia, notwithstanding her knowledge that her mother had fixed the papers, and deeded all the property to her, never made any search or inquiry to find the documents. The drawer in the table, where the valuable documents had been deposited, was not locked, but ihe door to the closet usually was. The family were occasionally required to go to the closet where this 'table was, for bedclothes and change of linen, yet the drawer where the mother kept her trinkets was never opened or examined. This may have been the conduct of the household, but it is not natural or reasonable conduct of ordinary people, under such circumstances. The father is shown to have been absent for four months at one time in Europe, and for a month at a time, during several years, at Tillamook. The reasonable mind would naturally expect that some member of tlie household would have
The signatures in the standards offered in evidence show that in 1871 Philinda Terwilliger changed her style of making the capital “P.” Prior to June 12, 1871, she made it with two strokes of the pen, commencing first at the top of the lines of the letter, and drawing the line down, and making a curve at the bottom, with a downward stroke. Thereafter she made the “P” with one stroke of the pen, commencing at the top of the line or stem, coming down to the ruled line of the paper at the bottom, then going up, on the left-hand side of the stem, with a curve, and crossing the main stem near the top, and ending with a shaded downward-stroke. This was the character of this letter made by her in her signatures to a deed executed July 24, 1873,-20 days before the date of the will,— and to a deed executed September 13, 1873, and another September 15, 1873, — one month after the date of the execution of the will. The capital “P” in the will signature — also in deed X — is made with two strokes of the pen, hut is made essentially different from the “P” made with two strokes by Philinda, as found in the standards. As illustrative of the manner of the testimony of the experts, and of the difference in this particular letter, I will read from the testimony of Mr. Hyde, which, in so far as it is confined to the facts, is verified by an inspection of the documents. The reference to the figures 0, 3, and 12 are to the standards of the admitted signatures, as written by Philinda, with the capital “P” made with two strokes of the pen. After mentioning the fact that the main stem of the “P,” as made in the standards, is different from that found in X, or the will, he testified:
“There is a still more marked difference in the upper stroke of the ‘P.’ .Philinda, in making the top member of the ‘P’ with the double curve there, commenced near the top of the letter, with one single stroke, and slight pressure upon it, — but still distinct pressure, — and one single oval loop there, brings that main stem over, according to her habit, down, to a greater or less extent, while the writer of X has made a double curve inside of his commencement. He has not commenced the letter as Philinda commenced hers, at the top, but commenced it away to tbe left, and commenced with an upstroke first, and then a rounded downstroke, before the main upstroke is reached. It forms a closed loop there, with a double line a.t the commencement, and is as radically different from that form of letter as could well be imagined. And following there, we find the top of the letter, which is almost hori*405 zontal, contains llio pressure, wliilo the lower and downward siroke of the right-hand side of this upper member, instead of increasing in pros,sure-increasing at iir,st, and then diminishing, — has obtained its maximum pressure nearly wheiv it, crosses the top line in X, and diminishes then eontin-uously, when it makes the turn down to the extreme lower portion of the line. Notv, that is the ‘I’ in X. The T’ in the will is also formed oil the same line as the T” in X, and ihe same line as the T’ in 9, 3, and 12. But there, again, is a radical difference hoth from the genuine, as shown by the standards here, and from the signature in X, and shows that these two (X and the will) were not made hy the same hand, and the one Is an imitation of the other, for here wo find these characters resemble. The main or principal stroke of the capital ‘P’ has almost identically the same form of commencing in both the will and X, while in its completion it is much more smoothly and symmetrically formed in the will than in X, evidencing a different and more skillful hand — a very much more skillful hand — in the will, and following habitual lines in the will, — lines that the writer was accustomed to,— whereas the lines of the letter ‘P’ in X were lines to which the writer was not accustomed, and hence that awkward stroke over the top of the ‘1’.’ Now, the ‘P’ in the will, 'irrespective of the difference in the upper member,— its radical difference from everything found in the genuine, as well as from the ‘P’ in X, — shows some other very marked distinctions from the genuine ‘P’s,’as found in these standards. We have in this ‘P’ of the will an unusually graceful and symmetrical stroke for the main stem. It is a stroke ma.de by a person familiar with copy-book writing. It is commonly known, as I understand it, as jho ‘Spencerian Method of Penmanship.’ It was made by a facile pen — by a man who could wield a pen, — and is as impossible to any effort of Philinda Terwilliger’s as it is possible to imagine. I can imagine nothing more impossible to Philinda, Terwilliger than to make such a letter ‘P’ as is found in the will, I have already spoken of the double lines found in the capital ‘P’ of the will, and the indication of several movements of the writer, and several light strokes of the pen, the reasons of which I am unable to discover, — can only conjecture. Now, these examples show, better than any description of words that I can give, the difference in the forms of these letters.”
This letter “P” is used ior illustration because it is the first letter in the signature. Differences have been pointed out in like manner, and at as great length and as much minuteness of detail, in each cf the other letters of the signature, noticeably, the character of the letter “h,” and its close proximity to the capital letter “P;” the regularity in the height of the “i’s;” the omission of the upward stroke at the end of the letter “a;” the difference in style of the capital letter “T;” the flat-shaped “e,” following the capital “T;” the loop in the Vs,’’ and tin; loop connecting the “w” with the “i,” and the symmetrical form cf the “g,” — all of which letters are made essentially different from the same letters found in the standards. The tremulousness in the letters of “Philinda Terwilliger” in the standards is much clearer, and more distinct, than is found to exist in the letters in the signature to the will. There is an erasure in the signature to the will over the letters “in” in Philinda. The writer first, wrote either “lil” or two “ll’s,” and then carefully erased the top part of the second letter, so as to form the “i,” or the first line of the letter “n.” John Orvis Waterman testified that he did not notice that any erasure was made when the will was signed. It appears that it was Philinda’s habit to make mistakes^ occasionally, in writing her name, but her mistakes were never erased. She did the very best she could in writing her name. In the first signature she made — October 2(5, 1865 — the right side of
It was suggested by defendants’ counsel, in the oral argument, that the shortness of the signature, cramped letters, and other peculiarities, could be accounted for by tbe fact, that the line drawn down on the deed between the names of the witnesses and the signature induced the writer to make the letters close together; hut the signature, as it is written, covers but little over half the entire space on the right-hand side of said line, and, if the purpose of the writer was to avoid running the signature into the word “Seal,” then, in this respect, it differs from the ordinary habit of Philinda Terwilliger in writing her name. "While her genuine signatures are not precisely of the same length, none of them are written in such a cramped hand, or peculiar manner, as found in tbe deed X; and no attempt seems ever to have been made by ber to
There are other important facts, and many minor details, in the evidence, which were commented upon by the respective counsel, that have not been specially referred to; but the entire testimony has been read, and carefully considered. The object, aim, and end of this investigation has been to ascertain the truth. The examination of all the conflicting evidence, and of all matters relating to the disputed questions, has been thorough, with an eye single to this purpose. From every standpoint from which the examina
Complainants are entitled to the decree prayed for in the' bill.
NOTE. This case was argued and submitted to Judge Sawyer in April, 1891, hut he .died without having filed his decision. In said .argument the complainants were represented by H. T. Bingham and E. W. Bingham. Before the reargument, H. T. Bingham also died.