61 So. 860 | La. | 1911
Lead Opinion
On Appellee’s Motion to Dismiss.
The grounds of this motion are: The record is incomplete, and that for that reason the appeal should be dismissed.
The certificate of the clerk of the district court shows that the transcript is not complete.
We are informed by the mover’s state- ■ ment, forming part of his motion, that 21 documents were offered in evidence by appellants on the trial of the cause, and that these documents, together with others, some six in number, offered in evidence by appellee, were to be sent up as originals forming part of the transcript.
The statement is that three letters written by the late Mrs. White are missing; that they are indispensable for comparison with her latest handwriting, and that they are besides impeaching evidence, as they impeach the testimony of the chief beneficiary of the will; that these papers and letters were considered by the judge a quo in pronouncing judgment; that they have disappeared since the date of the judgment in the district court.
The clerk of court in certifying • to the date of the transcript declared that, in accordance with the instructions of counsel of the respective parties, given on March 11th of the present year, he copied all the papers and documents necessary to complete the transcript except the lost documents; that he was unable to find these lost documents after a most careful and diligent search.
The appellee asks for a noneonditional dismissal of the appeal.
On Appellants’ Motion to Remand and Consolidate.
Both motions are premature.
They are referred to the merits.
After the case will have been submitted for decision, and the evidence will have been considered, it will be in order to determine whether the appeal should be dismissed, or remanded, or the case decided as now made up.
It may be that, after argument and consideration of the evidence, it will be possible to decide the issues without applying the contents of the missing papers.
We are informed that the clerk has not given up all hope of finding the missing papers ; if he finds them, they will be produced.
There is no suggestion before us regarding the negligence or fault of any one in matter of the papers before referred to.
Altogether, we are of opinion that it is better not to act in the premises at present.
For reasons stated, the motion will be hereafter considered and disposed of as required.
On Continuance of No. 18,813.
PER CURIAM. Considering that this is a contest over the genuineness of a purported olographic will of the deceased, and that a later purported olographic will of the deceased has been presented for probate in the court below, and further considering that 28 original documents in the handwriting of the deceased are missing from the record, it is ordered that the submission of this cause be set aside, and that it be continued until the further orders of this court.
Opinion on the Merits
On the Merits.
Mrs. Lydia Burnett White, for many years a resident of the city of New Orleans, died at Biloxi, Miss., on June 28, 1910, where she had gone eight days before to spend the summer. She was buried in New Orleans on July 1, 1910. Mrs. White’s succession was opened on July 5, 1910, by James E. Schenk, alleging under oath that he had reason to believe that the decedent had left a last will, and that it was deposited in her bank box in the Whitney-Central Bank. A few hours later James E. Burnett, the brother and sole heir of the deceased, appeared and filed a petition alleging his belief that his sister, Mrs. White, had died intestate, but joining in the prayer for the production of said bank box. When the box was produced in court and opened, no will was found. The notary appointed to make an inventory of the succession property, on July 8, 1910, found in a wardrobe, in the residence of Mrs. White in the city of New Orleans, between the pages of a book, a sealed envelope, on which was the superscription:
“Last will of Lydia White.”
The envelope when opened by the' judge, disclosed a document purporting to be the will of the deceased, reading as follows, to wit:
“Know ye all men that I, Lydia White make this my last will being of sound mind and understanding.
“No. 1. I give to my dear friends Mr. and Mrs. S. Hernandez my house No. 1736 Fourth St., now occupied by them, and all it contains belonging to me, with the exception of a few things hereafter mentioned.
“No. 2. To my dear friend Abagail Shenk of Louisville, Ky., I give my diamond brooch, watch and trunk which I take with me to Biloxi, also the sum of two hundred dollars.
“No. 3. To my dearly beloved friend, Irene Hester I give all my bonds.
“No. 4. To Miss Mamie O’Harra for many kind 'attentions I give my diamond ring, the one I wear.
“No. 5. I desire that my god child Lydia Black will receive my much prized piano and one hundred dollars.
*896 “No. 6. My locket with ray parents portraits I give to my cousin Annie Miller as a keepsake.
“No. 7. To Mr. Ed. Shenk I give my, property at Plenderson Point, Miss.
“No. 8. To Eloise Walker Duffy I give my silver caster, as a remembrance of me.
“No. 9. To little Stella Hernandez whom I dearly love I give three hundred dollars.
“No. 10. To Mrs. Octavie Lopez Toomey my silver sendee as a mark of esteem for her kindness to me.
“No. 11. I also give to Mrs. S. Hernandez my diamond ear-rings which I hope she will always wear in remembrance of me. I give them as a special mark of affection for her kind treatment in tending to my person during all my illness.
“No. 12. The rest of my property and effects I wish my brother J. F. Burnett to have.
“After all bequests are paid also debts I desire the remainder of money in bank divied (divided) into three equal parts, one part for my brother, one for Irene Hester, and one for Mrs. Hernandez.
“Written and signed by my own hand on the sixteenth day of June, Nineteen Hundred and Ten. June 16th, 1910.
“Lydia White née Burnett.”
On July 21, 1910, Mr. and Mrs. Hernandez .and other legatees named in the purported testament propounded this writing as the last will of Mrs. Lydia White, née Burnett, in olographic form. J. F. Burnett, as next of kin, opposed the probate of the document on the ground that it was a forgery. After a lengthy trial, Judge Sommerville rendered judgment in favor of the opponent, declaring the document presented not to be the olographic testament of the deceased, and refusing to admit it to probate. From this judgment all the proponents, except the two Schenks, appealed to this court, and the cause was in due course argued and submitted. While the causé was under advisement, the court, being informed that the same proponents had produced and propounded in the lower court another document, of date June 18, 1910, purporting to be the last will of Mrs. Lydia White in olographic form, set aside the submission and reinstated the ease on the trial docket, to await the further order of the court.
J. F. Burnett opposed the probate of the second purported will, on the ground that it was a forgery. The issue thus tendered was tried, and Judge Parker decided that the second alleged will of date June 18, 1910, was the genuine olographic will of Mrs. Lydia White, deceased. From that judgment, J. F. Burnett has appealed suspensively to this court.
The last purported will reads as follows, to wit:
“New Orleans, La., June 18, 1910.
“Know ye all men by these presents, that I Lydia White being of sound mind do make this my last will and testament.
“I cancel the one I made on the sixteenth of June and put in the bank.
“I was feeling very ill and disappointed and consequently I was very irritable and did not declare my real intention.
“I wish to make the following disposition of my possessions:
“No 1 My house No 1736 Fourth Street and all that it contains except my Piano I give to Mr and Mrs. Salvador Hernandez as a mark of my esteem and appreciation for all their kind attentions to me.
“No 2 To Mrs Salvador Hernandez I give all my silver except my castor, and the sum of Two thousand dollars for services rendered and her great kindness and gentleness in tending my person during all of my illness.
“No 3 To my dear friend Irene Hester I give all my Bonds and my Diamond ear rings as I had always promised them to her.
“No 4 To my life long friend Jennie Hester I give the sum of One thousand dollars as a loving remembrance.
“No 5 To dear Abby Schenk I give my trunk which I am taking with me to Biloxi my diamond brooch and the sum of Four hundred dollars.
“No 6 To Alice Walker whom I have known since childhood I give the sum of One thousand dollars.
“No 7 To Mrs Eloise Walker Duffy I give my silver castor and Two hundred dollars.
“No 8 To Miss Mamie O’Harra I give my cluster diamond ring and Fifty dollars (to replace the center stone) as a remembrance of her many kind attentions.
“No 9 To little Stella Hernandez whom I dearly love I give the sum of Three hundred dollars.
“No 10 To Ed Schenk I give my property at Henderson Point, Miss.
“No 11 To Mrs Octavie Lopez Toomey I give the sum of Three hundred dollars for her many kind services and attentions to me.
“No 12 To my old friend Nellie Stevens I give Five hundred dollars.
“No 13 To my God. child Lydia Black I*898 give my much prized piano the companion of my youth and the sum of One hundred dollars.
“No 14 I give One Hundred dollars to the ‘Daughters of the Confederacy.’ .
“No 15 My watch and chain I give to little Corinne Hernandez, for her kind disposition in running my errands.
“No 16 My Topaz pin I wish Miss Ghristiria Ball to have as a token of esteem, she was a good and faithful daughter to Julia.
“No 17 To my cousin Mrs. Annie Miller I give my locket with my parent’s portraits as a Keepsake.
“No 18 To Mrs. Caroline Brewster I give the lot at the Naval Station Algiers that once belonged to her and the sum of One hundred dollars.
“No 19 To Mrs Sarah Javelet I give my Diamond and Ruby ring as a souvenir.
“No 20 To my friend Fannie Rager of Phil-pot Ky I give my set of small beauty pins.
“No 21 I desire the double cottage No. 1726-1728 Fourth Street and the lot No. 2718 Baronne St. sold and the proceeds to pay all legacies and expenses.
“No 22 The remainder of my estate I give to my Brother James F. Burnett.
“I have made this will as a precaution against a sudden death. I have been quite ill -for some time past and I feel very badly at times.
“I request Mr Hiddleston Kenner and Mr Albert Duffy to act with Mr Salvador Hernandez as administrators of my estate.
“Written dated and signed by me on this the Eighteenth of June Nineteen hundred and ten. Lydia White née Burnett.
“(June 18, 1910) 8 P. M.”
This will is superscribed as follows:
“My last Will and Testament.
“Lydia White.”
The case was regularly fixed and after a trial lasting several months the trial judge maintained the will in the following “Judgment”:
“This is a suit to probate a will, which is opposed on the ground that the document is a forgery. There is a clause in the present will revoking a will of June 16, 1910, and this will bears date of June 18, 1910.
“The will of June 16, 1910, was held to be a forgery by my predecessor (Mr. Justice Sommer ville) , and it is perfectly patent and admitted that the two wills are not in the same handwriting.
“This discrepancy could be accounted for on the theory that the purported will of June 16, 1910, now on appeal, was used by the testatrix as a form of a will, which she subsequently destroyed. The testatrix had no relatives, other than a brother she had not seen for 17 years.
“Tlie bequests as made are all readily accounted for, as all of the beneficiaries had been most kind to her during life. A very significant feature is that a Mrs. Rager, of Philpot, Ky., was unknown to the other beneficiaries, and her identity only disclosed by the testimony of testatrix’s brother, who had not seen his sister for 17 years.
“The experts for the proponents were all positive as to the genuineness of the will, and the paying teller of the bank wherein testatrix kept her account testified he would have cashed any check bearing the signature attached to the will. A careful examination of the will shows that there has been.no retracing, and it would seem impossible to forge a will of four pages of legal cap paper without retracing some of the words.
“If this document be a forgery, it is a work of art.
“The proor aDSOlutely satisfies me that the will is genuine. The only part to cast any doubt on it is the reference to the will of June 16th.
“Let there be judgment as prayed for, ordering the probate of the will.
“New Orleans, December 2, 1912.
“[Signed] Porter Parker, Judge.”
For the sake of brevity, we will call the document of date June 16, 1910, the “first will,” and the document of date June 18, 1910, the “second will.”
The “first will” was found by the appraisers on July 9, 1910, in a book in an armoir in the room of the deceased, and was indorsed in a sealed envelope, on which was superinscribed the words:
“The will of Lydia White.”
This document was presented to the district court as the last will and testament of Mrs. Lydia White, and the proponents and their witnesses swore that the document was in the handwriting of Mrs. White. Judge Sommerville, after considering the evidence pro and con, held that the “first will” was a forgery. Judge Parker came to the same conclusion, saying:
“It is perfectly patent and admitted that the two wills are not in the same handwriting.”
Proponents now argue that the “first will” was a form prepared by some unknown
The first and second wills were found in the same room. The first was readily discovered, as it protruded from the pages of a book in the armoir of the deceased. The second was hidden beneath the linings of a dictionary, which were securely sealed. According to the testimony of Mrs. I-Iernandez, the existence of the second will was discovered by an accidental dropping of the dictionary by one of her children, which burst the covering and revealed the document. It is not at all probable that Mrs. White would have concealed her last will in such a manner as to render its discovery a matter of chance. The “last will” did not appear until after the “first will” had been declared a forgery, and there is no extrinsic evidence tending to show its existence at the date of Mrs. White’s death.
All of these suspicious circumstances must be considered in determining the validity of the “second will.” The second paragraph of this instrument reads as follows:
“I cancel the one I made on the sixteenth of June and put in the bank.”
As Mrs. White did not deposit any will in the bank where she kept her valuables in her bank box, the foregoing statement is false, and its falsity tends to prove that the instrument was not written by Mrs. White. Item 18 of the “second will” reads as follows:
“To Mrs. Caroline Brewster I give the lot at the Naval Station, Algiers, that once belonged to her and the sum of one hundred dollars.”
Mrs. Brewster’s Christian name was Catherine and not Caroline. Mrs. Brewster testified in part as follows:
“I boarded_ at Mrs. White’s for years, and we were very intimate, and she knew that my name was Kate just as well as she knew that her own name was Lydia, and as well as I knew that her name was Lydia.”
The proponents argue that the statement that the will had been “put in bank,” and the designation of Mrs. Brewster by the name of “Caroline,” instead of Catherine, were “mistakes” of the testator due to lapses of memory. It is more reasonable to presume that said mistakes were due to ignorance on the part of the author of the will.
A number of ladies, intimate friends of Mrs. White for years, and well acquainted with her handwriting, testified that the “first will” was a forgery. Among them was a very intelligent lady, a school-teacher by vocation, to whom was bequeathed all the “Bonds” of the testatrix. In the “second will” the same bequest was made, with the addition of diamond earrings which the testatrix had always promised to her. This legatee testified that the “second will” was also a forgery.
The ladies who testified that the “first will” was a forgery also testified that the “second will” was not in the handwriting
“To little Stella Hernandez whom I dearly love I give three hundred dollars.”
The connection between the two purported wills is so evident that counsel for proponents argue that the “first will” was used as a form for the “second will.” The “first will” was forged, and the natural inference is that the same or some other forger used it in drafting the “second will.” Forgery is further indicated by very remarkable changes in the bequests of the purported testatrix within the brief period of 48 hours. Changes without reason or cause; as the diminution of the legacy to her brother by $5,400 and more, by the increase of the legacies to the Hernandez family by $2,500 and more, and by the addition of ten special legacies, some of which Mrs. White had spoken of to her friend shortly before her death, as shown by the testimony adduced on the trial of the probate of the first will.
We think that all of those criminatory facts and circumstances render it unnecessary for us to discuss at any great length the opinions of the lay and expert witnesses adduced on the probate of the last will.
“The judge shall interrogate the witnesses under oath touching their knowledge of the testator’s handwriting and signature and shall satisfy himself that they are familiar therewith, making mention of the whole in his procSs verbal thereof.”
. The Civil Code provides nowhere for the proof of olographic testaments by comparisons of handwriting. In Succession of Roth, 31 La. Ann. 320, it was held by a divided court that testimony of experts, who had examined and compared the handwritings of the purported testator, was held to be admissible for the purposes of corroboration. The court said:
“We think that the testimony was admissible, as supplementing the proof already adduced of two persons who had derived their knowledge of the handwriting in the manner and from the source indicated by the Code, and in rebuttal of the testimony of the opponent, impugning the authenticity of the will, as being forged. Such testimony cannot by itself prove an olographic will, but when the handwriting has been established in the mode prescribed by the Code, and an opponent controverts the facts thus established by an allegation of forgery or other want of authenticity, the declaration of the two witnesses as to the handwriting may be supported by any other mode of proof, but otherwise, it is inadmissible.”
This decision shows the inferiority of expert testimony, and restricts its probative force to corroboration of the testimony of witnesses, who have a Knowledge of the testator's handwriting. Article 325 of the Code of Practice, reads as follows:
“If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name.”
“But the proof by witnesses shall not exclude the proof by experts or by a comparison of writing, as established by the Civil Code.”
The Civil Code, however, does not provide for proof by experts or by comparison. But it has become the practice to admit such proofs in all cases in which issues of forgery vel non of written instruments are raised.
The real experts in the case were Messrs. Spencer and O’Sullivan, the former employed by the proponents, and the latter 'by the defendant heir at law. Mr. Spencer found not a single difference between the handwriting of Mrs. White and the handwriting of the “second will,” and stated, in substance, that the identity of the writings was so apparent that the services of an expert were not needed.
On the other hand, Mr. O’Sullivan pointed out a number of differences in the form and structure of letters and general characteristics of penmanship, leading to the conclusion that the “second will” was a forgery. Our independent comparison before reading the evidence disclosed a radical difference between the capital letter H as written by Mrs. White and the same letter as it appears several times in the “second will.” Mrs. White joined the two side lines of her H’s by a loop, commencing at the bottom of the second line. In the “second will” the two side lines of the same letter are joined by a horizontal line. Mr. O’Sullivan testified:
“The capital ‘H’s’ are entirely and absolutely different from the capital ‘H’s’ in the originals, not formed at all in the same manner.”
We are of opinion that the evidence as a whole decidedly preponderates against the genuineness of the purported will, of date June 18, 1910.
It is therefore ordered that the judgment rendered by W. B. Sommerville, Judge, on February 14, 1911, and signed by him on February 20, 1911, be affirmed, and that the appellants pay the costs of this appeal.
It is further ordered that the judgment below rendered by Porter Parker, Judge, on December 2, 1912, and by him signed on December 10, 1912, and the judgment signed by the same judge on December 4, 1912, be annulled, avoided and reversed; and it is now ordered that all the demands of the proponents of the purported will, bearing date June 18, 1910, be rejected, and all the proceedings instituted by the proponents in the court below be dismissed with costs, and that the appellees pay the costs of this appeal.
