93 N.Y.S. 866 | N.Y. App. Div. | 1905
Lead Opinion
There is. no claim made- upon this appeal but that the will which Was admitted to probate was duly executed so as to entitle it to probate, and that the testator at the time of its execution was.of sound mind and that there was .no. evidence of undue influence. It is urged, however,, that there was competent evidence offered tending to show that the testator had made two later wills thereby revoking the will admitted to probate which, however,, had ¡been lost o.r destroyed, and consequently coitld not be produced. '
The questions presented upon this appeal are whether there was evidence presented which established the execution of either of these wills, and, if there Was not, whether the learned surrogate erred in his rulings excluding evidence which the contestants claim' was competent as-ten ding to show the due execution of these instruments or one of them. There is also another point raised because of the refusal of the surrogate to postpone the conclusion of the .hearing upon the application.to probate the will in question until a nephew who had attempted to commit suicide and was then insane could recover sufficiently tó be a witness.
'The evidence adduced upon the trial, so far as relates to the execution of the willsfln question, seems to be as follows.: Ambrose B. Burbank died in the county of New ¡York on the 17th day of January, .1904, aged ninety-three years. • It appeared that he left a wil.l which ,he had duly executed on the 29th of March, 1889, Which is the instrument admitted to probate. The contestants then offered evidence which they claimed tendéd to show that on the 27th day of December,- 188.9;, the same year that he had made the-probated will, the testator had. made ■ another will by Which" he revoked the will Which was admitted to probate. . The evidence óf Mrs. Newcomb, the widow of a deceased nephew of' the testator, was to the effect that on the
Mr. Du Bois died on December 13,1903, and the only way which the witness liad acquired any knowledge of Mr. Du Bois’ handwriting was that pending the proceedings for the probate of .the first will herein as appears by the evidence of her daughter, who was subsequently examined as a witness, she examined what purported to be the will of Du Bois on file in the surrogate’s office of New York county, and some payrolls - in the comptroller’s office upon which" Mr. Du Bois’ signature appeared, he having been employed, in the educational department of the city in his lifetime. The witness herself stated that she examined the payrolls after she had seen Mr. Dn Bois’ signature on his will in the surrogate’s office.
A daughter of Mrs. Newcomb was called and testified to the same effect as her mother. Mrs. Newcomb also testified to have seen a still later will, dated June, 18971 ■ One of the witnesses to this third will was Mr.- G.roser, but she stated that she was unable to distinguish the name of the other witness because it was written illegibly. Letters of the testator containing declarations as to a -will subsequent to that probated were offered in evidence, but they were excluded. '
The exceptions to these various rulings raise the principal questions which are presented upon this appeal.
It is' claimed by the contestants that, the evidence of Mrs. New-comb and her daughter as to the handwriting of Du Bois as a witness to the second will should have been received, and that it was. error to exclude the same; that the letters of the testator containing declarations .as to his wills were competent evidence, and that it was. error to: reject the same; and that, even if these rulings were, correct, there was sufficient evidence to show the due execution of a. will later than that probated, and that they should have been allowed td prove its contents, its loss being established.
It is urged in support, of. the latter - proposition that they have proved the existence of a will, in the handwriting of the testator, duly signed by him, and also signed by two witnesses at the end of an attestation clause; that they have proved' that" both of the witnesses' are dead,, and the signature of one of them, who was the last to sign, and that they have also proved that it was the intention of the testator to revoke the will probated by the lost will No. 2.
Under this state of proof it is claimed by the contestants that the court should have drawn the presumption that will No. 2 was duly executed. Some English cases are cited which seem to uphold this view, but! our attention has hot been called to any case in this State where the evidence of a desire of a testator not to die intestate or not to die testate as to a particular will, coupled with incompetent evidence of an effort fo effectuate .'this purpose, has ever been held to supply the want: of complete proof of the due execution of
In addition to these requirements our statute (2 R. S. 63, § 40 et seq.) provides that at the time of signing the will or making such acknowledgment the testator shall declare the instrument so subscribed to be his last will and testament, and that the witnesses shall sign at his request, these latter formalities being absolutely essential to the validity of the execution of the will. Our statute further provides that where the subscribing witnesses to a will are dead, such proof shall be taken of the handwriting of'the testator and of the witnesses so dead, and of such other circumstances as would be sufficient to prove such will on a trial at law. (Code Civ. Proc. § 2620.) That is, you must prove the signatures of the testator and -of at least two witnesses by legal evidence where the witnesses are dead, and also such other circumstances as show that the formalities of the statute have been complied with.
Presumptions have been indulged in in our courts to supply the direct proof of the circumstances required by the statute to accompany the due execution of a will, as that the subscribing witnesses when dead are said to speak through the attestation clause of the will, but the proof of the signatures has never been dispensed with and presumption allowed to supply its place. ;
The claim that because Groser signed his name under that of Du Bois that it jiroved Du Bois’ signature hardly- seems tenable, as under such circumstances the signature of a dead man would be of greater potency than that of a living witness. Besides, there is no evidence whatever that Groser knew Du Bois or his signature. Under our law witnesses are not required to sign the will in the presence of each other as is, required by the English statute.
The first error claimed is the exclusion of the evidence of Mrs. Newcomb and her daughter, of their opinion as to the genuineness of the signature “ Alpheus D. Du Bois ” at the end of the will. It is urged that although these witnesses had never seen or known' Mr. Du Bois, had íieyér seen'him' write, nor had ever seen any writing made by him, nor had seen any signature purporting to be his except that, alleged to have been signed to will No. 2 some four- ' teen years ago, before the commencement of these proceedings, they became competent witnesses upon the subject of the signature of Mr. Du Bois, because during the' progress of these proceedings they had seen a signature ;to a will which purported to be the will of Mr. Du Bois and'some signatures-to payrolls which were proved to have- been those of Mr. Du Bois.
In other words, it is claimed that these witnesses having compared the recollection of the signature that they had seen fourteen years ago at tli'e' (end of will, December, 188.9, purporting to be the signature of -Mr. Du Bois, with some signatures proved to be his, are competent to testify from this comparison of handwritings as to the verity of the signature at the end of the destroyed will. I have been unable to find any rule of evidence which'permits such a one-sided qualification of 'a witness to testify upon a particular trial. I say one-sided qualification because there is no possibility of any one else preparing himself in the. same way, as he lias not and cannot ' have the “ to be proved signature ” for his examination, it having been destroyed. ■ In all cases where • evidence has been allowed • because of qualification by comparison of handwritings' all the writings must be before the court so that the opposite party may -have an equal opportunity for comparison.
It'is .undoubtedly true that opinions as to handwriting are always the result of .comparison of handwriting, the witness comparing the “ to be proved signature.” in his- mind.with signatures.' that;he has seen 'written or with signatures to letters or other documents which the witness has seen, purporting to be in the handwriting of the party whose sign ature is to be proved and which letters, and documents are surrounded by such circumstances as induce'a reasonable presumption of their being liis own handwriting. But in these
Where, however, the writings are compared with a “to be proved_ signature ” which exists only in the mind of the witness no opportunity is offered to meet such evidence. The rule seems to be universal that it .is only an “ expert ” that can qualify himself to give evidence in a particular case, and an expert as to handwriting is defined to be “ any person who has had such experience in the examination of handwriting as to enable him to noté .and distinguish the characteristics of handwriting.” Recognizing the rule that experts only can qualify themselves to testify in a particular case, there seems to have been an attempt upon the part of the contestants here to show that Mrs. Newcomb had had such experience of handwriting as would qualify her to testify as an “ expert,” but the evidence fell far short of showing such qualification, and the claim that she was an '“ expert ” does not seem to be now insisted upon.
In the case of Miles v. Loomis (75 N. Y. 288-298) the opinion of the court expressly recognizes the rule that it is only an “ expert ” that can especially qualify himself to testify in a particular case. The court calls attention to the case of Doe v. Suckermore (5 Ad. & El. 703, decided in 1836) in which case it states that “ the whole subject received very great consideration. * * * The rule seemed to be conceded in that case by all the judges that, as to any but ancient writings, an opinion formed upon a mere comparison of hands at the trial, eo instanti, was not admissible, but they weré equally divided upon the question whether a knowledge of the handwriting might be obtained by a skilled person sufficient to render him a witness competent to speak as to the genuineness of the signature, merely by a previous examination of other signatures proved to be genuine.” I have been unable to find any case which in the slightest degree recognizes the admissibility of the evidence of any person who had qualified himself to testify in the particular case unless all the writings compared are produced.
First: By having seen the party write.
Second. By having seen letters or documents in the handwriting of the party whose signature is sought to be proved, -having personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such act, or by such adoption of them as induces a reasonable presumption of their being his own writing.
Third. By comparison of handwritings by an expert.
The counsel for contestants contend that the second mode is that involved in .this proceeding. But there is one essential element in the second method conspicuously absent, in this .case. Whatever knowledge the witness has who seeks to bring himself under the rule of the first two cases must.be acquired by his own Observation' of facts, occurring under his own eye, and, which is especially to lie remarked, without having regard to any particular person, case or document. (1 Greenl. Ev. [15th ed.] § .577.)
In the case'at bar the knowledge as to the handwriting, whatever it was, was -especially acquired having regard to a particular person, case and document, directly in contravention of the rule- which governs this class of evidence. In no view of the evidence, therefore, were these witnesses qualified to give their opinion as to the signature “Du Bois” at the end of the will. >
The next class of evidence which it. is claimed was erroneously excluded was that consisting of declarations of the testator relating to his wills. It' may .be well to call attention at this point to the statute which declares the methods by which a will may be revoked. The Revised Statutes (2 R. S. 64, .§ 42) relating to wills provides, amongst other things, that “ no will in writing * * * nor any part thereof shall be revoked or altered, otherwise than by some other will in writing, or some .other writing .of the testator, declaring such revocation or alteration, and executed with the same formalities , with which the will itself was required by law to be executed, or unless such will be burnt, torn, cancelled; obliterated,.or destroyed, with the intent and for the purpose of revoking the same, by the testator himself,” etc;
In view of the statute regulating the execution.of wills, and this
In the case of Atkinson v. Morris (Pro. Div. [1897] 40) in the Court of Appeal of England, the rule is laid down, concurred in by all the judges, that declarations made by a testator after the date of an alleged will, are not admissible to prove the execution of a will, and they "are equally inadmissible to prove, its revocation.
Lord Russell of Killowen, C. J., says upon this point: “ No one can doubt that this lady intended to revoke her will, and that the court ought to t>e astute to give effect to that intention, if it can do so consistently with the established and settled principles of law. The Wills Act has laid down the formalities which are to be observed in order to make an effective and operative willand if those formalities are not complied with, the law steps in, and however clear the intentions of the testator may have been, unless they are expressed conformably to the requirements of the statute, they are
I have cited thus at length from the opinions of the learned judges who wrote in the case cited to show.how rigid the rule is, as, notwithstanding all the sympathies of the judges were the other way,
In the case of Throckmorton v. Holt (180 U. S. 552) the rulé is distinctly laid down that the declarations of the deceased, when not a part of the res gestea, are not admissible to prove the execution of á will, or its revocation.
It seems to be clear, therefore, that declarations of the testator, made after the factum of the execution of the wills, were incompetent to prove the execution of will No. 2 or the revocation of will No. 1, and were properly excluded.
The only other question which remains to be considered is 'whether it can be said that the learned surrogate abused his discretion in refusing to postpone the closing of the trial until Samuel. M. Burbank, at,the time insane, could be produced as a witness. We do not think that he did. The trial had been commenced, and it would be a very unusual thing to suspend a trial to await the production of a witness. It is true that the surrogate made an order-for the exami-' nation of Samuel M. Burbank. But that was done when it was thought that he could be produced. When, however, the true condition was shown to the surrogate, and that it would certainly be months before he could possibly be in a condition to testify, and • might never be in such a condition, there does not seem to have been any abuse of discretion in not waiting upon this uncertainty.
The decree should be affirmed, with costs to the respondents against the contestants.
Patterson, O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented. , ’ '
See 7 Wm. 4 & 1 Vict. chap. 26, § 20 et seq.— [Rep.
Dissenting Opinion
I am unable to concur in the prevailing opinion in this case. It is conceded that the rule in England, under its Statute of Wills, within the evidence herein, would have established the factum of will No. '2, which, it is claimed would have revoked will No. 1, had it been propounded for probate. - This seems to be established under authoritative decisions by the English courts in two recent cases, one decided in 1902 (Matter of Peverett, L. R. Pro. Div. [1902] 205), and the other decided in 1890 (Harris v. Knight, 15 id. 170).
As is pointed out, however, in the prevailing opinion, the publication of the instrument as a will is not’ required by the 'English, statute (7 Wm. 4 & 1 Vict. chap. 26, §§ 9,13), but is required under our Statute of Wills (2 R. S. 63, § 40), and the authorities are to the effect that subscription and acknowledgment and publication are two distinct acts, and that the first cannot stand for the last.
• Aside from this question, however, I am bf opinion that the proof offered and received in the casé and the proof offered which has been rejected, had it been received-,, was sufficient in its probative force to.establish the factum, of will No. 2, had such-'will itself been propounded for probate. Evidence was, given tending to show that will No. 2 and will No. 3, the latter bearing date in 1897, were in a . trunk in the testator’s possession; that ■ immediately upon the testator’s death the papers came into the hands of Caleb and Samuel Burbank and were never seen thereafter. Under. the evidence in the case, the surrogate would .have been authorized' to find that these two wills were fraudulently disposed of after the testator’s death. There is no. evidence that he' destroyed them, and the circumstances proved were sufficient to overcome any presumption that they were destroyed during his. lifetime. Under such- circumstances, the court is justified- in giving force and effect tó any. competent evidence, however slight, which, if applied, Would establish the factum of tbp will. It is evident, however, that the appellants 'were not'required to assume this burden in order to justify evidence which would authorize the court to find that will No. 1 propounded for probate had been revoked by either one or the other of the subsequent wills. Section 2620' of the Code, of Civil Procedure provides that when .'‘ all the subscribing witnesses to a written will are * * *
I also think it was error to exclude the testimony of Mrs. New-comb with respect to the signature of the subscribing witness Du Bois. It is said that Mrs. Newcomb was not competent to testify concerning this question for the reason that she was not an expert witness, and further, if she qualified as such, the circumstances did not bring her testimony within any rule allowing expert testimony to prove handwriting as applied to these circumstances. It appeared from the evidence that Mrs. Newcomb had been a business woman for over thirty years; that she was engaged in connec
In principle I am of opinion that this case falls within the 2d subdivision of the rule announced at common law’,' and that the evidence offered under such rule was admissible. Where the witness has seen the handwriting of the person whose writing is the subject of dispute in a letter or other writing he may testify therefrom that he knows the handwriting of such person,.and he is hot incompetent as a witness by reason of the fact that the signature which he saw was made before the controversy arose in which the handwriting became the subject, of dispute. However dim the memory may become by lapse of time, yet if the witness be then able to state that he knows the handwriting, he is competent to testify to such fact, even though years may have elapsed. ■ Such condition goes to the weight of the proof, not to its competency. Such a situation is quite vividly described by Hand, J., in Miles v. Loomis (75 N. Y. 288). Therein the learned judge said: “ Evidence of hand writ-, ing, it is universally conceded, may be opinion merely. It is as universally conceded that a witness who has either ever seen the party write or who, not having seen him write, has received letters from him which have been c acted upon ’ by him as genuine, is competent to give an opinion as to his handwriting, And this competency is not-affected by the lack of' frequency of observation, the length of time which has elapsed since the writing was seen, or the slightness of the correspondence, although the weight of the opinion will of
In principle the case which now confronts us is not different from the one .where concededly the rule is applicable. ~ The only difference is that here the condition is exactly reversed. Mrs. Newcomb lias acquired a knowledge of the handwriting of Du Bois from admittedly genuine signatures upon various documents. Her mind now recalls with more or less distinctness the handwriting which she saw-upon the will. By mental process she makes examination of the genuine handwriting-of Du Bois then before her with the handwriting which she carries in her memory taken from the will. By no possibility can there be difference in such operation between a witness who brings the memory of a handwriting which he knew down to comparison with the one upon which his opinion is required. The mental process in both is the same. The principle which establishes right to the testimony in one case confirms it in the other. Both are precisely alike from which is evolved the opinion, and if one is admissible, it is difficult to see why the other is not. We are not now discussing the weight of such testimony, only its competency. The question was precisely decided by the Supreme Court of Kansas in Abbott v. Coleman (22 Kan. 250). It was also considered in Guyette v. Bolton (46 Vt. 228). Therein the evidence was rejected because it did not appear that the witness was qualified to make a comparison. It was not doubted, however, but that the testimony was competent.
It is said that such rule may not be applied for the reason that the testimony thus given is one-sided and that there is no-opportunity to contradict it. This must always be said of a witness giving testimony where the conditions do not admit of its contradiction. Confessedly, Mrs. Newcomb is competent to testify to the signature of G-r'oser because she knew his handwriting, and it is equally true that the respondents are powerless to contradict her upon such subject,
In view of the misapprehension of the scope of the prevailing opinion by the learned justice who writes the. dissenting opinion, it seems to be necessary to say a. word or two in reply, in ' order that his. assumptions as to the rules contended. for in'.the prevailing opinion shall not pass unchallenged. ■
The learned justice writing .the dissenting opinion states'that, it is asserted, ih the prevailing opinion that “.if the revoking clause be contained in a subsequent, will, the factum Of such will must''be established in like, manner and-strength as would entitle it to be probated had it been.presented to the court for such purpose.” , I think that the prevailing opinión will be searched in vain for even a hint at any such' proposition. ' Upon the contrary, that., opinion
The learned justice .further announces a proposition, which is nowhere contested in the prevailing opinion, although' it would seem that he had the impression that such,was the case. He states that in certain cases the attestation clause of the will raises a presumption that the requirements of the statute in respect to signature, acknowledgment, publication and request to the witnesses to sign have been complied with. And he cites Matter of Nelson (141 N. Y. 152) and Matter of Witt of Cottrell (95 id. 329). He might also have cited the case of Peck v. Cary (27 id. 9), a case which he singularly overlooked on this point. But in each of these cases there was complete proof of the signature of the two witnesses whose names were subscribed to the attestation clause.
The next proposition which seems to need attention is the claim that the conversation which the testator had witli Mrs. Newcomb On the 28th of March, 1890 (the will in question having been executed on the 27t-h of December, 1889, three months before), was part of the res gesta. He says: “ Those declarations certainly were a part of the res gesta connected with that will, and as such, within the authorities which we have cited, evidence relating thereto was admissible.” "What he means by “ were a part of the res gesta connected with that will,” it is difficult to comprehend. The only evidence which pertained to revocation, so far as that will is evidence of revocation, was its execution, and certainly those declarations were no part of the res gesta of the execution, and the very authority which he quotes states that the declarations ot the deceased, tending to show that a written will has been revoked, are open to the same objection unless they accompany some act which. the statute prescribes. The testator at the time he made the declaration to Mrs. Newcomb on the 28th of March, 1890, was doing no act prescribed by the statute
Patterson, O’Brien and Ingraham, JJ., concurred,
. Decree affirmed, with costs to respondents against the contestants.
See, 2 R. S. 64, § 42.— [Rep.
Jackson ex dem: Van Dusen v. Van Dusen.— [Rep.
See 2 R. S. 64, § 42.—[Rep.