52 Ky. 257 | Ky. Ct. App. | 1852
delíveréd the opinion of the court';
A paper purporting- to be the will of Chai’les S.Ha-wkins, and beai-ing date the 2d of July, 1840, having, in August, 1848, been admitted to probate in the' Madison county coux-t, as a will wholly written and’ signed by the testatoi’, this bill was filed in the Madison circuit court, by several of the heirs against thedevisees of C. S. Hawkins, to contest the validity of said paper as a will.
The issues arising upon the pleadings and evidence, are' — First, whether the paper in question, to which' there is no attesting witness, was wholly wi-itten and signedby the decedent himself; and second, whether,if the paper was wholly written by him, he was of sound and disposing mind and memory at the time of writing and signing it. And each of these issues arises particularly in reference to certain important words and figures alleged to have been inserted in the paper, by erasing or obliterating, the words first written, and inserting other words and figures in their place. There is evidence conducing to prove that this was, in fact, the case.- And the particular ques
The original paper which has been brought up with .the record presents intrinsic evidence of its having been .altered after the first writing, in the particulars referred to; but there is no direct evidence as to the time when the alteration was made, and but little ground for inference. No witness ever saw the paper until after the death of C. S. Hawkins, when it was exhibited by O. A. Hawkins, the principal devisee, at whose house the alleged testator died, and who stated that he had found it in the pocket or pocketbook of the decedent after his death.
Upon the evidence there is no serious question that the paper was signed and written by C. S. Hawkins, except with regard to the alleged interpolations, as to which the evidence is contradictory, and this court would not be authorized to disturb a verdict either way which had received the sanction of the circuit judge presiding at the trial. Nor does there seem to be any serious question as to the competency of C.' S. Hawkins to make a will at the date of the paper in question, and for some years afterwards. But if there be alterations in the writing, not made and written by the testator himself, the whole will must fail; or if written by himself, the will must still fail, unless, when written, he was competent to make a will. — • Whether, upon the assumption that the alterations were made by the testator himself, he was then competent, depends upon the question when the alterations were, in fact, made. For not only was there oral evidence that he was insane for some months previous to his death, but the complainants produced in evidence an inquisition of lunacy finding him to
This evidence was objected to, but the admissibility suc^ inquisitions, and their effect as prima facie evidence, are well established. And although the inquisition was entitled to no effect upon the verdict, unless the iury should believe that the alterations', if i i ' ’ any, made in the will were made after the period to which the inquisition refers, its admissibility before the jury did not depend upon the determination of that fact, which they alone could decide, but merely upon its own efficacy to prove the fact which it stated x , , as to the period during which the lunacy had existed. -^3 the inquisition fixed the period at which the luna-, cy found by it commenced, it was not necessary that the court should, unasked, qualify its admission by telling the jury either that it did not prove the existence of lunacy before the period named, or that it could not affect the validity of any part of the paper offered as a will, unless such part was written after that period. The time at which the alterations, if any, were made not being conclusively fixed by the testimony, and being open for the decision of the jury, the effect of admitting the inquisition without qualification, was not to pre-judge the question as to the time of the alterations, but to leave the jury free to inquire and decide whether the alterations were or were not made within the period to which the evi-, dence of lunacy applied. We perceive no error, therefore, in admitting this evidence or in failing to qualify it.
Upon the question, whether the alleged alteration» were written by C.S. Hawkins, three witnesses, Barnes, Moran, and Nolan, professing experience in the examination of writings, but who had no previous knowiedge of the handwriting of O. S. Hawkins, undertook to point out discrepancies between the letters, or some of them, in the parts of the writing alleged to have been altered, and the same letters in other parts $f it; also to state that from the appearance of the
The general rule with respect to proof of handwriting requires that the witness shall have had personal knowledge of the party’s handwriting, either by having seen him write, or by having seen writings purporting to be his and afterwards admitted by him, or with his knowledge and acquiescence acted on as his, or adopted into the ordinary transactions of life as his. (1 Greenleaf's Ev. §577.) The same author in §578 states the exceptions to be — First, where the writing is of such antiquity that living witnesses cannot be had, but not so old as to prove itself; in which case other documents either admitted to be genuine or proved to have been treated and acted on as such by all parties, may be produced, and experts may, upon comparison, testify their opinion concerning the genuineness of the writing in question. Second, where other writings admitted to be genuine are already in the case ; in which case he says the comparison may .be made by the jury without the aid of experts.
In the present case, it is to be observed that the witnesses do not undertake to say that any part of the instrument in question is or is not in the handwriting of the decedent, from a comparison of this instrument or any part of it with other writings, which, under the rule and exceptions above stated, could not be done, except on the ground of antiquity, or where the other writings are admitted and already in the case. But they undertake, first, to speak of facts as they appear to them on the face of one and
There is, as we think, a clear distinction between these two branches of the testimony in question. The .entire instrument being before the jury, with the question whether the whole and every part of it was written by C. S. Hawkins, upon which question, as no one saw the instrument written, evidence of handwriting furnished the only means of proof, the jury, besides hearing such evidence as was admissible on that subject, must of necessity have the right to compare the different parts of the writing and the disputed with the undisputed parts, as a means of determining whether it was wholy writte'n by the same person. And this is allowable under the principle of the second exception to the general rule excluding comparison of hands. One element of this comparison consists in the observation of the resemblance or difference which may be found in the formation of the same letters and words in different parts of the instrument. And although a difference in this respect may in itself furnish but slight ground, and sometimes none, for inferring the non-identity of the handwriting, yet it may be resorted to, and with such effect as, under all the evidence, the jury may think it entitled to. But because the jury may make this observation themselves, and are to judge of its weight and effect upon the principal question, it does not follow that they must be unaided in the scrutiny, or that they should only be aided by the evidence of those who have a previous acquaintance with the handwriting of the individual.
Where the discrepancies are glaring, a jury might observe them without aid from others. But such as are more minute and less striking would not, unless pointed out, be noticed by ordinary persons or wit
The question as to the other branch "of the testimo-" ny objected to is essentially different from that which . . , has been just considered. The testimony now in fiuesbon is not the statement of facts derived from mere inspection, or touch, and subject to be tested by the senses of the jury or of other witnesses, but is the statement of opinions as to handwriting, derived not from that previous knowledge or impression which,according to the general rule on the subject, a-wit-' ness must have in order to qualify him to express his opinion or belief as to handwriting, but from the immediate comparison of different portions of an in- . , , , , . . „ , . , , , strument with the handwriting of which he has no previous acquaintance. The witness does not corn-pare the writing before him with any exemplar formed in his mind naturally, incidentally, and without
It is true Mr. Greenleaf, in the passage already quoted, intimates that in cases coming within the se
The cases referred to in the argument of this question, and most of the others which we have seen, relate to the admissibility of other writings introduced for the mere purpose of comparison with that in question, as a means of determining its genuineness. And although there is considerable diversity of opinion with regard to their admissibility for the purpose of comparison even by the jury, the current of authority and the decisions of this court are against it. (See McAllister v. McAllister, 7 B. Monroe.) The case of Doe ex dem. Mudd v. Suckermore, 5 Adol. & Ellis, 703, decided in 1836, in which the judges of the King’s Bench were equally divided, and gave their opinions seriatim, and at great length, presents the question ás to the competency of a witness, offered merely as an expert, to prove the non-identity of the handwriting of a signature before the jury, with others admitted to be genuine by the person whose signature was in question, and who, being himself a witness, stated that the disputed signature (as an attesting witness to a will,) was his. The other signaturfes which had been shown to him on the first day of the trial, and admitted by him on oath before the jury, were on that-evening submitted to an expert for the purpose of studying them and of thus making himself familiar with' the handwriting. And on the next day he was offered-to prove that the signature in question was not the' same, or was not genuine. This testimony was rejected- at nisi prius, and by a division of the court in
Upon the whole evidence in the case, the court overruling the instructions asked for by the complainants, gave in lieu thereof a comprehensive instruction as follows, viz : “That if the jury found from the evidence, that the paper set up as the will of Charles S. Hawkins was entirely in his handwriting, and that at the time of writing it he had mind and memory sufficient to make a rational disposition of his estate, they ought to find it to be his will; but unless they so fóuud, they ought to find it not to be his will; and that it devolved upon the defendant to prove that the will was wholly in the hand write of C. S. Hawkins, and that at its publication he was of competent mind and memory to make-it.”
To so much of this instruction as directs what the verdict should be, in case the jury should, upon the evidence before them, that is, upon the whole evidence, believe that the proposed will was or was not entirely in the handwriting of C. S. Hawkins, and that at the time of writing it he was or was npt of disposing mind and memory, there is no serious objection. For although the precise legal question is not as to the mere handwriting of the instrument, but whether it was wholly written and signed by the supposed testator, yet as the evidence of handwriting was the only means of proof upon this question, there could have been no misapprehension either of- law or
This objection is applied especially to so much of the latter part of the instruction as relates to the competency of C. S. Hawkins; with respect to which it is contended that it was not only calculated to mislead, but was actually erroneous as a legal proposition, in disregarding the established presumption in favor of sanity. We do not, however, admit that this presumption dispenses with prima facie evidence of
This doctrine of a presumption in favor of sanity is too well established to require a citation of authority. We refer, however, to the case of Brooks, &c. v. Barrett, &c., 7 Pickering’s Rep. 94, as an instance of its application to the question of probate in the manner above suggested. In that case the court, after stating that under the statute of Massachusetts the subscribing witnesses are to prove, in the court of probate, not only the execution of the will but also the sanity of the testator, and that upon appeal the same course is pursued, and that upon such proof being made the burthen shifts from the propounder to the opposer of the will, adds, that if the evidence of the proposer, that is, of the subscribing witnesses, is deficient, he is to make out the affirmative from the whole case; that if he' makes out his case by the statute evidence, he has only to defend against the opposing evidence of insanity; and that having produced the statute evidence, if the case be made doubtful by the evidence on the other side, the presumption of law must have its effect upon the final decision. That clause of the instruction now under consideration seems to be erroneous in excluding altogether this presumption; and, also, in excluding the right of the defendant to make out his case on
As the case must go back for a new trial, and as the jury may find that the whole instrument as it now appears, including the signature and apparent alterations, was written by O. S. Hawkins, and that at the date of the original instrument he was competent to make a will, the question will arise whether, when he wrote the new words and figures and thus finished the instrument as it now appears, he was of sound and disposing mind and memory. Upon this question we remark, that if it be proved that O. S. Hawkins was sane at the date of the instrument, the continuance of this state of mind would be presumed until the contrary should be shown, and that in the absence of all evidence of insanity, his competency at the date of the alterations, though made after the date of the instrument, would be sufficiently established. It is apparent, therefore, that upon the hypothesis assumed, the propounder of the will might, make out his case prima facie without precise proof of the time when the alterations were made, or the new words and figures, written. And if he did so, the burthen of proving insanity would devolve on the other party, not requiring that he, any more than the propounder of the will, should fix the precise time of inserting the new words, but that he should produce
For the errors above noticed the decree is reversed, and the cause remanded for anew trial, in conformity with the principles of this opinion.