It appears in evidence that the payees of the note gave Patrick Harris, on the day the note of hand bears date, their own check to his order for the sum of $500. This check also bears the indorsement of Patrick Harris, and it is claimed to represent the consideration for which the note was given to claimants. In the course of the hearing the counsel for the executrix conceded that this check was taken from Koller & Bro.'s check book in regular order and that it was cashed at the bank on which it was drawn, and that the proceeds were paid to Mr. Patrick Harris, deceased. Thus we have the genuineness of the check practically admitted by counsel for the executrix. The expert called by the executrix seemed also to concede the genuineness of the indorsement by Patrick Harris of the check of even date with the note. Indeed, he used such indorsement as a genuine writing for the purpose of comparison with the signature on the note. The only other documents introduced in evidence for the purpose of comparison appear to be checks of a third person, dated in 1908 and 1909, and bearing the indorsement of Patrick Harris. The lapse of time between the date of the note and the checks of 1908 and 1909 was considerable; but the expert called for the executrix, I think, conceded the similarity of the general makeup of the letters composing the words "Patrick Harris" in all save one of the documents used for the purpose of comparison on the hearing. The one excepted was illegible and made under circumstances which should have excluded it from comparison.

[1] The burden of proving a disputed claim against the estate of one deceased is, of course, on the claimant. "Ei incumbit probatio, qui dicit, non qui negat." Walbaum v. Heaney, 104 App. Div. 412, 93 N. Y. Supp. 640. And it is also a general principle that a claim withheld during the life of an alleged debtor and sought to be enforced after his death should be carefully scrutinized, and admitted only upon satisfactory proofs. Kearney v. McKeon, 85 N. Y. 137: But when the creditor's claim is rejected and he is put to his proofs, the law requires no different evidence from that required in other proceedings for the enforcement of debts of a similar nature. Here the creditors produce a note purporting to be made by the deceased and prove a consideration. Prima facie the proofs suffice to support such claim. The executrix, to meet the evidence, does not plead payment, but affirms that the note is spurious. It would seem that at this stage the burden of sustaining such plea is with the executrix, and if she fails to sustain her plea that the holders of the note must prevail.

[2] When a charge of forgery is made by a litigant, I take it that even in a civil proceeding the presumption of innocence applies in favor of the persons charged. There is no other presumption more highly favored in law than that of innocence, and this is so whether such a charge of crime or gross delict arises in a direct proceeding to punish the offenders or in some collateral proceeding. "Injuria non præsumitur." Ross v. Hunter, 4 T. R. 33; Best on Evidence (3d Am. Ed.) § 346. So strongly is the presumption of innocence applied by the courts that it generally prevails over conflicting presumptions.

Clayton v. Wardell, 4 N. Y. 237, 238. But even if the executrix is relieved from proving the forgery charged beyond reasonable doubt, as would be the case if the people were the prosecutors of such a charge, certainly she must establish the truth of her plea by a preponderance of proof.

[3] With this brief survey of general principles applicable in any judicial solution of the issue here presented for trial, we proceed to consider the state of the proofs. The only testimony in support of the charge of evil fabrication or falsification of the note in controversy is given by the handwriting expert called for the executrix, and his testimony, in substance, is to the effect that the similarity between the signatures to the check of 1903 and the note of hand of the same date is too great to be natural. He swears that it is almost impossible for any one to write signatures twice alike, and from these premises he infers that the note is not genuine. If we concede the accuracy of the premises, the conclusions of the expert may be warranted. But in looking closely over the testimony the surrogate finds that no writings by Patrick Harris are in evidence, except his signatures. If Harris was unable to write other than his name, as is suggested by the fact just noticed, it would seem to the surrogate that the writing of Patrick Harris was purely mechanical, and not the exercise of a literary faculty in which letters tend to become arbitrary or conventional, sometimes wholly arbitrary in the case of purely literary people. The uneducated man, who can write his name only, would probably take fewer liberties with the letters combined in his name, and thus a tendency to exact mechanical reproduction of signatures might be apparent in his case, when it would not be apparent by the various examples of the signatures of the more educated and freer cursive handwriters.

To one who can write his name only his signature tends to be stereotyped, for the letters then mean but one thing. This is not true in the case of handwriting, which means a thousand things to the writer. It may even be doubted whether a signature maker is a handwriter at all, and whether expert testimony is competent in his case. At least this hypothesis was not considered by the expert witnesses or by counsel in the cause, and yet it cannot be excluded by the surrogate in any attentive consideration of the testimony; for the surrogate, and not the expert, is to decide the issue of fact in this cause. Opinion evidence is always offered as an aid to the triors of fact, and it is never conclusive, especially when the opinion is founded on a hypothesis demonstrably incomplete or inconclusive.

There is perhaps another good reason why the surrogate should form his own independent conclusion in this cause. The expert for the executrix assumed that the check was genuine, and then reached. his conclusion that the note, from its close resemblance, was simulated. Had the note been conceded by the expert to be genuine, the check could be proved a forgery by the same process of reasoning. Without, however, questioning the accuracy of the scientific methods of the professional expert in question, it seems to the surrogate that other testimony given in by the holders of the note precludes the

surrogate from considering the opinion evidence at all. The handwriting expert called by the holders of the note is of the opinion that the signature of Patrick Harris to the note is genuine, and that the signature on the note and that on the check of even date were both written by Patrick Harris. As no other expert evidence was given in by either party to the controversy, the probabilities are left by the experts evenly balanced, and the surrogate is therefore at liberty to disregard such testimony and to form his conclusion free from the conjectures of the expert witnesses on either side. This is certainly a great relief to the surrogate, as it would be manifestly repugnant to justice to find forgery on the unsupported testimony of a single opinion witness. Having reference to the even weight of testimony noted, we now recur to the presumption of innocence which must prevail in any case where the evidence is so evenly balanced as that of the experts. It is apparent that the presumption in question, if applied at this point, favors the holders of the note.

[4] But it is, fortunately, not on opinion evidence, or on the application of presumptions, that the solution of the issue of fact in this matter necessarily rests. The surrogate has pointed out that the genuineness of the check of 1903 was conceded by counsel for the executrix. The genuineness of the note is also established by the testimony of a disinterested and unimpeached witness, Mr. De Angelo, who swears that Koller & Bro., the holders, offered to sell him this very note in the presence of Patrick Harris, and that Harris objected. to the sale, stating that he would "take it up shortly." In view of Mr. De Angelo's testimony, the surrogate must find that the note is a valid obligation in the hands of Koller & Bro.

Let the findings and decision be accordingly.

(76 Misc. Rep. 394.)

In re JACOBS' WILL.

(Surrogate's Court, New York County. April, 1912.) 1. WITNESSES (§ 46*)-COMPETENCY-COMMISSION OF CRIME.

Under Code Civ. Proc. § 832, providing that a person who has been convicted of crime is nevertheless a competent witness, the fact that witnesses are engaged in the business of professional sporting bookmakers, which is unlawful, does not render them incompetent, but goes only to the credibility of their testimony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 108; Dec. Dig. § 46.*]

2. WILLS (8 302*)-PROBATE-SUFFICIENCY OF EVIDENCE.

Where, after a widow has been appointed administratrix of her husband's estate, on petition showing that he died intestate, and she has acted in that capacity for over a year, she offers for probate a will giving all his estate to her, and upon a contest as to its genuineness all the circumstances concerning its custody are inconsistent with the testamentary character, and the testimony on every issuable fact is controverted, she has not sustained the burden of proof resting on her, and probate will be denied.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 575, 581, 700-710; Dec. Dig. § 302.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

3. WILLS (§ 289*)-PROBATE-Burden of Proof.

The burden of proving to the satisfaction of the surrogate the genuineness of a will and the validity of its execution rests on the proponent. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 653-661; Dec. Dig. § 289.*]

4. WILLS (§ 293*)-PROBATE-ADMISSIBILITY OF EVIDENCE.

In a testamentary cause, the surrogate is entitled to consider the facts regarding the custody and production of the testamentary paper; that is, from whom and whence it came.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 666-672, 675–678; Dec. Dig. § 293.*]

5. EVIDENCE (§ 60*)-PRESUMPTIONS-INNOCENCE.

The proponent of a will, the signature to which is alternately sworn to be a forgery and genuine with equal freedom, is entitled to the benefit of the presumption of innocence, though such presumption is not strictly applicable.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 81; Dec. Dig. § 60.*]

Proceedings on the probate of the last will of Henry Jacobs. Probate denied.

Samuel J. Siegel, for proponent.

Hamilton, Gregory & Freeman, for contestant.

FOWLER, S. This in one respect is a most unusual case in this tribunal. As stated in the written brief of counsel, submitted in behalf of proponent:

"The testimony

is most conflicting, almost every fact testified to

by any of the witnesses being contradicted."

This frank and justified statement by proponent's own counsel is very significant on a contested probate, where the burden of proof, by established authority, rests so strongly on the proponent throughout the trial. For more than a year past the proponent has been acting as the administratrix of her late husband, Henry Jacobs. The sworn petition for the widow's appointment disclosed that Henry Jacobs died intestate or without a will. It was only after a long course of administration by the widow, and after trouble and altercation had developed between those entitled, pursuant to the statute of distributions, to succeed to the estate of Henry Jacobs, that the paper propounded was discovered, under circumstances which, to say the least, are unusual. These circumstances in themselves tend to excite some suspicion, in view of the proofs, concerning the genuineness or sufficiency of the testamentary paper propounded. The mere appearance of the paper after such a lapse of time naturally caused some surprise to the father of deceased, who had long been led to suppose himself entitled to one-half of his son's property, under the statutes of this state controlling the division of such property in the event of intestacy. The father now earnestly contests the genuineness and validity of the paper in question, on this proceeding to probate it, and so successfully that proponent's own counsel concedes that the testimony on every issuable fact in the cause is controverted. And it is so.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

[1] The late Henry Jacobs, the alleged testator, was proved beyond all controversy to have been in his lifetime, by occupation, a professional sporting book-maker. His accounts, given to some extent in evidence, disclose the varying success of this now unlawful, but lucrative, occupation. It naturally followed that Henry Jacobs' intimate associates during life were those who followed the same occupation, and some of them appeared on the witness stand and frankly admitted that their calling, at the times involved in the evidence, was the unlawful one mentioned. This established fact is asserted by proponent to go to the credibility of such witnesses, and the widow, here the proponent, presses this point upon me with so much insistence that I am obliged to give it due consideration in weighing the evidence. In many countries, where racing is encouraged, book-making per se is not unlawful. But it is proscribed here (Penal Law [Consol. Laws 1909, c. 40] § 986), and the conceded infraction of our law by a witness may go to his credibility, and to some degree bears upon the weight of his testimony. But, as the contestant's witnesses also were necessarily drawn from his own station in life, I do not think I should be justified, even if the witnesses are disparaged, in disregarding such portion of their testimony as is consistent with the circumstantial evidence apparent in the cause. I know of no rule which disqualifies such witnesses from testifying to facts within their own knowledge. Code Civ. Proc. § 832. The concededly lawless character of their occupation goes only to their credibility. To this qualification of their evidence I have, as demanded, given due weight and consideration.

[2] But if the contestant's evidence is tinctured by some marks which go to its probative quality and effect, the same is true to some extent of the evidence offered to me upon the part of proponent. One of the two attesting witnesses to the alleged will is sought to be impeached as a person unworthy of belief, and witnesses familiar with his general reputation in the community in which he lives have sworn that they would not believe him under oath. The other attesting witness, while not impeached directly, became an attesting witness to the will under circumstances which, if true, are so unnatural as to be most suspicious in themselves. In this cause the genuineness of Henry Jacobs' subscription to the alleged will is not only disputed, but the evidence in regard to it is baffling beyond all precedent familiar to me. It is alternately sworn to be a forgery and genuine, with equal freedom. So proofs of the "alibi" of Henry Jacobs on material occasions, such as the date of execution, have been freely established and as freely disproved by the deliberate oaths of the different witnesses, so much so as to make all certitude as to the real fact absolutely impossible. The testimony on all points at issue is as completely at variance as a universal affirmative on the one side and a universal negative on the other can make it. There is no shade of agreement on any one point.

It is sworn on the part of the widow, who at this late day produces the will and who is the proponent here, that she lately found the will in Chicago in a little modern writing desk, formerly in the apartment of Henry Jacobs in this city. It was not a desk of the old pattern,