101 P. 798 | Cal. | 1909
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *490
A purported will of the deceased was offered for probate. A contest was instituted before probate, it being alleged that the purported will was a forgery. Issue was joined, trial was had before a jury upon the special issue propounded in the following interrogatory: "Did the deceased, J.W. Thomas, subscribe his name to the instrument purporting to be his last will and testament filed in this court on the 8th day of December, 1905?" The jury answered "No." The court adopted this special verdict and made findings against the validity of the will, and by its decree denied it probate. John R. Young, the proponent of the will and named therein as sole executor, moved for a new trial. A statement for use on the motion was settled and filed October 14, 1907. Thereafter, on October 30, 1907, before the decision upon the motion for a new trial, the contestants served notice on proponent and his attorneys of a motion to *491
set aside the certificate to the statement and to amend the statement, upon the ground "that the statement now on file does not truly represent the case." A hearing was had upon this motion, evidence was by the court taken, and the court "being satisfied that said statement is inaccurate and does not truly represent the case, orders that the certificate of the judge appended to said engrossed statement be and the same is canceled and set aside. The court thereupon further orders that said statement be amended as follows." The statement as filed contained declarations to the effect that the court had refused to give certain instructions, and that to its refusal the proponent had duly excepted; whereas, in fact, the record established that the proposed instructions had been given. Objection is made that the court was without power so to amend the statement, or, if it had the power, that it was error to amend it under the procedure taken. The application of the contestants was to set aside the certificate and to amend the bill. The application was made within six months after the settlement of the bill, and thus within the time contemplated by section
Upon November 7, 1905, John W. Thomas, an aged man of eighty-two years, died in the city of San Jose. On the *492 13th of November the public administrator filed a petition for letters, as in case of intestacy. On the 24th of November B.F. Thomas, a nephew of deceased, petitioned for letters of administration. Thereafter, on December 8, 1905, the will here declared a forgery was presented for probate by John H. Young. The will was a typewritten instrument. Proponent offered evidence tending to show that it was prepared in the office of William A. Bowden, an attorney at law, and was there signed by the deceased and published and declared to be his last will and testament in the presence of the subscribing witnesses, Bowden and Mrs. Young, proponent's wife. There were certain circumstances which at once caused suspicion to arise concerning the validity of this instrument. Young was not related to Thomas, had known him only since June, 1904, when he made his acquaintance for the purpose of effecting a loan of six hundred dollars from him, which loan he never repaid. He subsequently borrowed three hundred dollars, which he asserts that he repaid, though Thomas's papers give no evidence of this. He knew that he was named as executor of the will, he was the custodian of the will, the will declared that the only relation of the deceased was a nephew residing in Portland. The newspaper to which Young was a subscriber contained an account of the sickness and death of Thomas, but at no time before or after the funeral did Young appear at the Thomas house, and the will was not presented by Young for probate until the full statutory period of thirty days had elapsed. The will gave to Young two thousand dollars and named him as executor without bonds. It declared Thomas to be of about the age of eighty-four, when in fact he was at its date not eighty-two. The will made the testator declare that "the only relation that I know anything of at the present time is a nephew, Benjamin Thomas, who resides at Portland in the state of Oregon, or resided there when I last heard from him." In fact, it was shown and appeared from various letters and papers of the deceased, that he had numerous relatives, that he kept in constant communication with them, and followed with great interest and particularity the progress of their lives. Moreover, when Thomas was found ill unto death by Mrs. Hellen, a witness upon the contest, she also discovered a document lying face downward *493 on the stand by the side of the sick man's bed. This paper was in form a holographic will, wholly written and signed by the deceased, lacking only the date to give it validity under the statute. That instrument, after making provision for the payment of his debts and funeral expenses, provided as follows: —
"Second: After such payment, I give to Amelia Nolting two hundred dollars.
"Third. I give, devise and bequeath all the property real and personal and effects of every name and nature which I now have may disposed of or entitled to; one third to my brother T.F. Thomas, Hermitage, Wyoming County, New York. One third to my sister Anna T. Perry, South Richland, Oswego County, New York. One third to my nephews and a niece herein named to be equally divided between them and their heirs and assigns forever, B.F. Thomas, Modesto, California, R.B. Thomas, Lacon, Illinois. I make, constitute and appoint B.F. Thomas of Modesto, Stanislaus County, California, to be my executor of my will and to act without bonds of this my last will and testament, hereby revoking all former wills by me made.
"In witness whereof, I have hereunto subscribed my name and affixed my seal. J.W. THOMAS."
There was thus a statement in the testator's own handwriting showing a very intimate knowledge of his relatives and their whereabouts — a statement in flat contradiction to his purported declaration in the will of July 11, 1905. This holographic instrument, it was shown, had been in existence for three years, which the more conclusively established that this knowledge of his relatives could not have been acquired after July 11, 1905, the date when, by the purported will, he declared that he knew nothing of them or their whereabouts. Letters of the deceased were forthcoming, showing that he maintained an intimate correspondence with and knowledge of his relatives, and, finally, the testimony of many witnesses, experts, and those familiar with the handwriting of the deceased, went to establish that his signature to the purported will of July 11th was forged and fraudulent. All these matters were shown in evidence against the validity of the alleged *494 will, with many more facts and circumstances to the same end, not necessary here to consider. For it will not be contended, and indeed is not contended, that the evidence was not sufficient to justify the verdict of the jury and the judgment of the court. It is insisted, however, that for certain erroneous rulings upon the admission of this evidence the court should have granted a new trial, and to the consideration of these matters we now come.
Questions calling for the declarations of the testator were admitted over objection, the following serving to illustrate their character: —
"Q. What statements, if any, did he (the testator) make to you about his relations?
"A. He said he had a number of relations and that he intended to treat them all alike.
"Q. What did he state to you with reference to the date of his birth?
"A. He told me he was born August 21, 1823.
"Q. State to the jury what he said to you concerning his relations, that is who his relations were and where they resided?
"A. He told me that he had relatives in the East, and spoke of his brother and his sister Annie. He spoke of her about two weeks before he died. He told me that he wanted his relations to inherit his property."
In addition, written declarations of the testator, expressed in letters, proved to be in his handwriting, and in the holographic will above quoted, were received in evidence. All of this evidence was admitted over objection, and it is here contended that it was improperly admitted. It is the general rule, recognized by the great weight of authority and accepted in this state, that the declarations of a deceased, when forming no part of the res gestæ of the testamentary act, are not admissible for or against the genuineness or validity of the instrument, saving in the two cases where the question for determination is that of the testator's sanity or that of undue influence. In both these instances the underlying principle is the same. The declarations are then admitted, not in proof or disproof of any statement of fact contained in them, but as tending to show the condition or state of mind of the *495
declarant, this condition or state of mind having a direct and important bearing upon the disputed question of his mental capacity or of the execution of the will under undue influence. They are not admitted in proof or disproof of the matter embraced in the declaration. "These declarations are to be admitted, not in any manner as proof of the truth of the statements declared, but only for the purpose of showing thereby what in fact was the mental condition, or in other words the mental capacity of the testator at the time when the instrument in question was executed." (Throckmorton v. Holt,
Complaint is made of the refusal of the court to give certain proposed instructions, but the amended statement discloses that these instructions were actually given. The court refused, however, to direct the jury as follows: —
"7th. In a case involving the comparison of different writings where the question is one of resemblance or similarity, an ordinary individual can arrive at a conclusion quite as correct as that of the opinion of the most skilled expert in handwriting. *498 Jurors have a right to use their eyes as well as their ears in such a case, and may differ in their conclusion from the opinion of the expert witness."
Appellant declares that the proposed instruction has received the sanction of this court in People v. Storke,
"Generally the testimony of experts will not be allowed to overthrow the positive and direct evidence of credible witnesses who testify from their personal knowledge. While the law permits in certain cases expert testimony in reference to handwriting to be given, yet such testimony should be received with great caution, and the jury are at liberty to reject it if they should find it not well founded in fact. The jury is at liberty to use their own judgment in the matter of handwriting, and are not obliged to follow the opinion of experts."
Upon motion for new trial affidavits were introduced to the effect that a memorandum book or diary purporting to have been kept and written by William A. Bowden, attorney for proponent, had been taken to the jury room, submitted to inspection under a magnifying glass by the foreman of the jury, who then argued to his fellow jurors that the name "Thomas" had been interpolated in the book after the trial of the cause. These statements were met by counter affidavits on the part of the foreman and certain of his fellow jurors denying these allegations. It appears that the memorandum book was an exhibit in the case and, as such, the jury was entitled to take it and inspect it and make investigation and comparison of the writing therein contained. (Code Civ Proc., sec. 1944.) It is not shown that the magnifying glass, if one was used, had not also been employed in the courtroom in the examination of exhibits, but even if it were, we would not hold that the employment of this mechanical device by the jurors in aid of their investigation of handwritings was illegitimate or improper.
For the foregoing reasons the order appealed from is affirmed.
Melvin, J., and Lorigan, J., concurred.
Hearing in Bank denied. *500