2 Bradf. 226 | N.Y. Sur. Ct. | 1852
The instrument propounded for probate in this case, by the executor, C. Glen Peebles, bears date February 15th, 1850, and purports to be attested by William B. Parsons, and David F. Smith. On the examination of these witnesses, George F. Case produced another will of the same date, which the witnesses identified as having been attested by them, at the same time denying any knowledge of the execution of the first-mentioned will. It is important to examine, with critical attention, the character of this denial, in order to see whether it is founded upon a clear and distinct recollection of the circumstances, or is the result of an argument in the minds of the witnesses. If the latter, then they may be mistaken in a conclusion derived from insufficient and erroneous reasoning. Mr. Parsons says, in relation to the execution of the will propounded by Mr. Peebles, “ The signature of my name, as a subscribing witness thereto, looks very muck like my writing. I crnnot say that it is. I would not like to sen/ it is not, and I cannot say that it is mine? “I have not the slightest recollection of signing it.” The witness then proceeds to state that he did attest a will of the deceased; the paper produced by Mr. Case,—and he gives his reasons for fixing upon that instrument. He says, 1. That at the time of execution, he noticed the words “ Sparhawk Parsons,” “ eighth,” on the last line of the first page of the will. 2. When Smith signed his name “David F.,” he asked him why he signed so, he being called “ Fred; ” to which the other replied that was his name, “ David Frederick Smith.” ■ 3. That when the testator showed his signature, he recollects observing a peculiar scratch in the flourish under his name. Mr. Parsons adds, “I have no recollection of signing any other paper than Exhibit No. 1. (the will produced by Mr Case) as a will, for him, at any other time. It is possible I may have signed other papers for Mr. Graham, but I have no recollection of signing any that he presented to me on that day, or at any other time, as a will, except Exhibit No. 1. I am quite sure he did
Mr. Smith, the other witness, says “ The signature of my name, to the paper propounded for proof in this matter by Mr. Peebles, is not my signature,—is not nvy handwriting” “ I never saw but two wills in my life, and these are the two. I recollect, distinctly, signing Exhibit No. 1. The reason why I know I signed Exhibit No. 1 is, because
If these witnesses disprove the execution of the will propounded by Mr. Peebles, it is a forgery, and one, too, of a most remarkable character—a forgery of the names of witnesses to an instrument in every other respect confessedly genuine. For there is no manner of doubt that the entire body of both the wills in question, together with the attestation clause and the testator’s signature, are in the writing of the deceased Francis Graham. To suppose-that the testator put the names of Parsons and Smith there, is to suppose a wrong and motiveless act, by a party interested in having a genuine instrument. The paper bears marks of having been written after exhibit No. 1, and if Graham attempted to imitate the signatures of the witnesses to the first paper, he would not have varied the signature of Smith from “ David F.” to “ D. Frederick.” If we pass to the other supposition, that the signatures of the witnesses’ names were written by some other person than Graham, then the fact urged by Smith, that he never wrote-his name in that way, is strongly against the idea that any one would forge his name in that way. And, besides all, on the hypothesis of a forgery, there is the extraordinary
It is clearly proved that, about the 15th of February, 1850, the decedent executed his last will and testament, and yet two wills are produced, each bearing that same date, appointing the same executors, each written by the decedent, and each purporting to be subscribed by the same witnesses. It is certain that a will was executed. If there was only one will executed, which is the paper; or does not the solution of the whole difficulty consist in there having been two wills executed on the same day.? May not both wills be genuine ? The instrument propounded by Mr. Peebles is more ample in form than the other, and, without doubt, was written after it.— In exhibit No. 1, the testator says, “ I give, &c., unto the counsel whom I have this day retained and employed (by my sincere friend, C. Glen Peebles, Esq.), &c. &c.” The will offered for proof by Mr. Peebles, runs thus, “ I give, &c., unto Alden J. Spooner, Esq., of the city of Brooklyn, an attorney and counsellor whom I have this day retained and employed as my counsel (through my friend C. Glen Peebles, Esq., of the city of New York), &c., &c.” Besides being less full and formal, in several of its details, than the will produced by Peebles, the will exhibit No. 1, contains an alteration of the interest originally bequeathed to Spar-hawk Parsons, from “ one-eighth ” to “ one quarter part.” By each of these instruments, one-eighth of the estate is given to his counsel, and the remaining seven-eighths are distributed in eighth parts. Supposing the alteration from “ one-eighth ” to “ one quarter ” bequeathed to Sparhawk Parsons, by exhibit No. 1, to have existed at the time of execution, then the residue was all disposed of, but if the alteration was not made at the time of execution, then one-eighth of the residue was not bequeathed. The decedent
As a circumstance that may bear slightly upon the due execution of both wills, I may mention that Smith says the transaction occurred near the middle of the afternoon, at 3 or 4 o’clock, while Parsons says it transpired near the middle of the day. Where the testimony of a witness is confessedly affected by his reasoning, and is not given as a matter of pure recollection, it is useful to test.the evidence by the statements or conduct of the witness at a time when the facts on which he reasoned were different. After the death of Hr. Graham, it appears that Mr. Peebles applied to the proprietor of Dunlap’s hotel, for the delivery of some papers contained in the desk of the deceased. At that time the will produced by Hr. Case had not yet been found, and the will in the possession of Mr. Peebles was the only one supposed to be existing. Mr. Dunlap then requested to see the will. Peebles exhibited it to him, and he called Mr. Smith and asked him “ if that was his signature, to the will Peebles had.” Mr. Roberts, one of the witnesses, says, “ Smith replied, I think, in the affirmative, and, at any rate, the desk was opened and the papers delivered up. I don’t remember the precise words, but inferred more from the facts that followed, that the answer of Smith was satisfactory to Dunlap. I am quite sure he did not deny the signature.” Mr.
There is some confusion as to the time this will was exhibited. Mr. Roberts thinks a printed notice of the probate was shown at the same interview. But Mr. Smith states that he did not see the printed notice when the will was shown, and Mr. Parker says that, when the desk was opened, he
As to the state of the evidence in regard to the handwriting of the witnesses to the Peebles will, it preponderates in favor of the genuineness of that instrument. The signature of Hr. Parsons seems almost identical in both. That of Hr. Smith, allowing for the variance from “ David F.” to “ D. Frederick,” admits of the same remark, in my judgment. Indeed, Hr. Parsons himself says that, looking at the signature of his name alone, he sees no reason to doubt its genuineness. A witness was called, who gave the same opinion, and no effort was made to disprove it. In respect to Smith’s signatures, Hr. Dunlap testified that there was a partial resemblance between both of them and Smith’s writing, but not strong enough to identify either; he should rather think that he did, than that he did not, write them both, but his impression was strongest in favor of the one signed “ David F. Smith.” Hr. Case says that, as to the signature D. Frederick Smith, there is a resemblance to Smith’s writing, and he could not say it was not his; does not believe it to be genuine, from the fact he had never seen it written in that way. He adds that, at the date of the will, he knew nothing of Ms signature. Two witnesses were called to impeach the signature “ D. Frederick Smith,” and expressed the opimon it was not in Smith’s writing; but the value of their judgment in the matter may be readily seen, when it is stated that they both gave the same opinion in regard to a number of signatures and letters which Smith acknowledged to be written by him.
The denial of witnesses as to the formalities required by statute, for the due execution of a will, where they do not recollect the occasion of the execution, can have no greater force than the failure of recollection as to the occasion. Of course, if they have forgotten the main occurrence—if they do not remember the transaction as a whole, they do
I shall next advert to some other evidence which bears materially upon the case. 1. The testator abode at Dunlap’s hotel, Parsons boarded in the same house, and Smith was employed at the Exchange Hotel, next door. If the testator, after having executed one will before these persons, altered and corrected it, it was natural that he should ■call them in again to witness the new Instrument. 2. Smith states that he does not recollect that anything was said at the execution of the will, as to writing his place of residence; and yet he never witnessed a will before; and is not likely to have known of the provision of the statute on that point. 3. The will produced by Mr. Peebles is identified by Mr. Spooner. There was something unusual in the origin of this instrument, which has led to the existence of this testimony. It appears that Mr. Graham was involved in a burdensome litigation, and about the 12th of February, 1850, was apprised by his counsel, Mr. Cutler, that he desired him to secure the services of some other person. Through the intervention of Peebles, the suit was then placed in charge of Mr. Spooner. Having no means at his command, the testator proposed compensating his counsel by some testamentary provision; and, the proceedings in the cause requiring prompt attention, the execution of the will was not likely to be delayed. How, Mr. Spooner states that he saw the will very soon after its date; that Peebles brought it to him, having previously put into his hands the papers in Graham’s suit, and requested him to undertake the case. He had one or two interviews with Mr. Graham, and expressed some reluctance to assume the management of so onerous a case. He says, “ After these
Had the evidence stopped at this point, I do not see how any reasonable doubt could have existed as to the genuineness of both wills. Thinking it, however, a proper case for the examination of the parties producing the instruments, I examined Mr. Peebles and Mr. Case, and a circumstance was somewhat singularly disclosed, still further favoring the ascertainment .of the truth in this remarkable case.
7. Mr. Peebles stated that the instrument offered by him for probate, was handed to him by the testator, he thinks the day of its date, to take charge of it, and also for the purpose of seeing whether Mr. Spooner would act under it. He testified that the instrument had remained in his possession until it was deposited in this office for proof.
8. Mr. Case stated, that the will produced by him was found with other papers, in the pocket of an old coat belonging to the deceased, taken from his desk after his death, when it was first opened at Dunlap’s hotel, as already mentioned. At that time, Peebles took possession of the papers in the desk, and the coat was thrown aside as worthless. Mr. Case took it home, with Peebles’ permission. On learning this fact, I directed Mr. Case to produce all the papers so discovered by him. He did so ; and in the bundle produced were two old wills of the testator, one endorsed, “ Last will and testament of Francis Graham, of the city of
“Old
Wills of Francis Graham,
30th Oct., ’49.
Vide 8 Nov., ’49.
Revoked by one confided to the care of C. G. Peebles, Esq”
All these endorsements are in the handwriting of the deceased; and the memorandum thus found affords a conclusive corroboration of the fact stated by both Peebles and Spooner, in relation to the custody of the Peebles will. Besides the declaration endorsed on that will by the deceased, that it was executed February 15,1850 ; besides the evidence of Mr. Spooner and Mr. Peebles, establishing that the document was in Mr. Peebles’ possession, with the knowledge and approbation of Graham,—we have here, from an unexpected quarter, another declaration in the writing of the deceased, found.in the same place where the Case will was discovered, and stating that he had confided his will to the care of Mr. Peebles. Here is a will, written and subscribed by the testator,—endorsed by him as executed,—from the character of its contents, evidently a revision of another altered will of the same date,—purporting to be attested by the same persons who witnessed the altered will,—delivered by the testator to one of the executors, for the purpose of exhibiting it to another person,—exhibited to that person alone, and also in the testator’s presence,—and retained by the executor until the testator’s decease. And on the other hand, we have the altered will found after the testator’s death, in his coat pocket, and never shown to have been out of his possession; and in the same receptacle a memorandum is discovered, declaring that his wiÜ had
When the witnesses to a will are dead, or have forgotten the circumstances of the execution, the performance of the formalities required by statute may, after proof of their signatures and that of the testator, be inferred or presumed from the recitals of the testatum clause. (Chaffee vs. Baptist Miss. Conv., 10 Paige, 85 ; In the Goods of Leach, 12 Jurist, 381.) On the supposition that Parssons and Smith have lost all recollection of the transaction, the court, if satisfied from other evidence that they did in fact witness the will, may admit it to probate. I have no doubt at all that, even when the subscribing witnesses corruptly deny the execution, and, a fortiori, where they are mistaken, the proof of the will may be supplied from other sources. It is an error to suppose that the law has invested the subscribing witnesses with absolute power to defeat the ends of justice. It would be a most dangerous doctrine, to hold that the validity of so important an instrument depends entirely on the honesty of the two witnesses, and that if they deny its execution the will inevitably falls. Such may often be the consequence in the absence of any other proof, but it is not a necessary consequence in law; such a tremendous power is placed in no man. The proof of a will abides by the same rules of evidence as prevail in all other judicial investigations. The question for the court is,
I am not aware that any case precisely of this kind, has before occurred ; but it has often been conceded that a will maybe proved against the evidence of subscribing witnesses. The witnesses have frequently been contradicted as to particular facts, such as capacity, the signature of the testator, &c. In Lowe vs. Jolliffe, 1 Wm. Bl., 365, the three subscribing witnesses to the will, and the two surviving ones to a codicil, and a dozen servants to the testator, all unanimously swore him to be utterly incapable of making a will; and yet the jury were satisfied of the perjury of all the witnesses except one, and the validity of the will was established.. In Jackson vs. Christman, 4 Wendell R., 277, Justice Sutherland said, “ If the subscribing witnesses all swear that the will was not duly executed, the devisee may, notwithstanding, go into circumstantial evidence to prove its due execution.” In Hitch vs. Wells, 10 Beavan, 84, one of the witnesses was dead, and his signature was proved. Another witness testified that he made his mark to the will, but did not remember that the testatrix signed it. But the other witness denied her signature, and swore that she could not write her name. Five persons were called to prove she could not write, and three to show the contrary. The judge and jury disbelieved her, and a verdict was rendered in favor of the will. On a motion for a new trial, Lord Langdale said, “ In a case where one witness is dead, another is not to be believed, and the third witness cannot recollect, everything in favor of the instrument is to be presumed.” It is evident in this case, that Baron Alderson, who tried the cause, and the Master of the Bolls, both acceded to the position that the will could be
The counsel for the contestant urged that evidence of handwriting could not be taken to prove the signatures of the subscribing witnesses, except in the precise contingencies mentioned in two sections of the statute—that is, where the witnesses are dead, insane, out of the State, or incompetent to testify. (2 R. S., p. 58, § 9; Laws 1837, ch.