forge a note purporting to bear the signature of the testator, and show this note to one or more persons who might be acting in entire good faith, and then, after destroying the note so that the forgery could not be proved, might establish the genuineness of the signature by his own testimony, and might then prove the contents by the innocent persons to whom he had shown the note.

It is further urged that in the case of Minnis v. Abrams, supra, the document in question was not lost, but was actually produced in court, so that the personal representative had an opportunity to contest its genuineness, and it is said that this is true of many of the authorities. cited and relied on by the respondent.

2. In reply, it is claimed by the respondent that the correct rule is shown in the following extract from 30 Am. & Eng. Enc. Law, 2d ed. 1033:

"Handwriting.-Testimony that a document is or is not in the handwriting of the decedent involves merely a matter of opinion, and not a personal transaction or communication between the witness and the decedent, if the knowledge thereof was obtained otherwise than through the transaction undergoing investigation. Therefore, according to the great preponderance of authority, a witness may testify that he knows the decedent's handwriting, and that the signature to the document in question is genuine, and for the same reason he may state that the signature is not genuine; but it is not competent for the witness to testify that he saw the decedent sign the paper"-citing, in the notes, numerous cases, including Minnis v. Abrams, supra.

3. Is this question settled by our own decisions?

In the case of Minnis v. Abrams, already mentioned, the bill was filed to collect a balance on a note for $400, which on its face appeared to be barred by the Statute of Limitations. The complainant, however, relied on a new promise made by a letter written by decedent, in which

the deceased assured complainant the Statute of Limitations should never run against the debt. An administrator ad litem having been appointed, a question arose in the case as to the competency of certain evidence, in view of the Tennessee statute already quoted. The court of chancery appeals excluded all testimony by the complainant as to communications or transactions with the deceased, but held that it was competent for complainant to testify to the independent fact that he had this letter in his possession, and that it was in the handwriting of the decedent. The letter itself was filed in the case.

After stating that the policy of the statute is "to provide that when one of the parties to a litigated transaction is silenced by death, the other shall be silenced by law," the court continues (105 Tenn., at pages 664, 665) "We do not think proof by the surviving party that he had a letter in his possession, and that the letter is in the handwriting of the deceased, is in contravention of the statute. These are independent facts, which we hold may be proven by either party to the suit. It was held by this court in Montague v. Thomason, 91 Tenn. 173, 18 S. W. 264, that, preliminary to the introduction of other proof, it was competent for the surviving party to state as independent facts that he at a particular time possessed a letter or written instrument, and that it had been unintentionally lost, but he was not competent to testify as to its contents. See Mason v. Spurlock, 4 Baxt. 563."

In the case of Montague v. Thomason (1892) 91 Tenn. 168, 18 S. W. 264, suit was brought by the representative of a decedent on a promissory note, and the defense was that the note in question had been paid by a renewal note, which renewal note had been collected as an asset of the testator before the institution of the present suit.

The defendant Thomason, one of the makers of the note on which suit was brought, testified, over objec

tion, that he received a letter from the decedent (which he had lost), authorizing a renewal of the note sued on, and promising to send him, when the renewal note was received, the old note on which suit had been brought; that he (Thomason) thereupon caused the renewal note to be executed, and forwarded the same to the decedent, but never did receive the old note, which was paid by the renewal note.

Speaking of this testimony, the court says (91 Tenn., at page 172): "The testimony of Thomason includes both a transaction with and a statement by the deceased, and, consequently, is doubly incompetent -within the prohibition of the statute in a twofold sense. He testifies He testifies to the extinguishment of the note sued on, by the execution and delivery of another note in its stead. If that was not a transaction, it would, indeed, be impossible to state what would constitute a transaction between the maker and payee of a note."

In discussing the point, the court further said (91 Tenn., at page 173): "Preliminary to the introduction of other proof, it was competent for Thomason to state, as independent facts, that he at a particular time possessed a written instrument or letter, and that it had been unintentionally lost (see intimation to this effect in Mason v. Spurlock, supra); but if claimed to have been written by Hossell, deceased, he was not competent to testify as to its contents, or to prove by his own oath what he did in response thereto."

was

In the case of Mason v. Spurlock (1874) 4 Baxt. 554, suit brought upon a claim alleged to be due the estate of a decedent, which the defendant, Spurlock, insisted in his answer that he had paid, and for which he insisted he had taken a receipt, which was lost during the Civil War-about 1863. After stating that the burden was on the defendant, Spurlock, to establish payment, in view of certain written obligations executed by him, and of

fered in evidence by the complainant, it was said, in arguing out the question of fact (page 563), that Spurlock proved by another witness that he had some valuable papers destroyed in 1863, but did not attempt to prove that he ever had such a receipt as he was claiming, and the court continues: "It is certainly not clear that Spurlock would not have been a competent witness himself, to prove the loss or destruction of the receipt, although he could not have been a witness as to any transaction with or statement by Stone in his lifetime. See Act of 1870, Thompson & S. Code, § 3813d. Yet he did not offer himself as a witness. Under the circumstances, the presumption of payment from the lapse of time is not strong."

While it may be true, as insisted by the petitioners, that the remarks in Mason v. Spurlock and Montague v. Thomason, supra, were made by the court arguendo, and do not actually decide the point, yet the case of Minnis v. Abrams is an actual decision, and can only be distinguished on the ground pointed out by the petitioners, to wit, that in that case the disputed document was before the court, and subject to the court's scrutiny and to the examination of expert witnesses.

undoubtedly,

does exist between that case and the instant case, and it may therefore be said that no one of our own cases decides the exact question.

We are constrained to think, however, that the dicta in the other cases (if such they be), and the actual decision in Minnis v. Abrams, indicate a construction of our statute in line with the majority opinion on this disputed point.

The reasoning of the courts adopting this view is, in substance, that the expression of opinion as to the genuineness of a decedent's handwriting, is not a matter which could be contradicted by the decedent, if he were then alive and able to testify.

As stated in the leading case of Sankey v. Cook (1891) 82 Iowa,

125, 128, 47 N. W. 1078: ject of the statute is to so close the lips of the living party to the transaction that he cannot give testimony in regard thereto that, because of the decease of the other party, he cannot dispute, if untrue. If Cook was alive he could not dispute Sankey's evidence that, in his opinion, the papers were in his (Cook's) handwriting; that is, it is not so in the nature of a personal transaction that he could dispute it as such. It is but evidence of a fact existing independent of a personal transaction."

It is strongly urged on behalf of the petitioners that the adoption of this view affords an opportunity for fraud against the estate of deceased persons in the manner herein before detailed. But as stated by the supreme court of West Virginia, in the well-considered case of Johnson v. Bee (1919) 84 W. Va. 532, 7 A.L.R. 252, 256, 100 S. E. 486: "If

the ultimate effect of evidence admitted against the estate of a deceased person were the sole test of admissibility, much evidence not relating to personal transactions or communications would be inadmis

sible."

We cannot extend the language of the statute beyond its legitimate meaning because a case of possible fraud may be imagined. It may, moreover, be suggested that under the rule contended for by petitioners, it might be difficult, if not impossible, to prove a lost note against the estate of a decedent, however honest and well-founded the claim.

In the case of Johnson v. Bee, supra, wherein the two lines of authorities are discussed, it is further said: "A decided weight of authority affirms the right of an interested person or party to testify. to the handwriting of a signature purporting to be that of a deceased person, if he is otherwise qualified, even though he would be an incompetent witness to testify to the act of signing."

It is also said (7 A.L.R. 257): "The chief purpose of the statute is

to prevent the living party to a transaction from testifying, because the other, being dead, cannot be produced to contradict him, in case of false swearing. Denial of right to the former to testify puts them on an equality. Faulkner v. Thomas, 48 W. Va. 148, 35 S. E. 915. If so, its reason does not apply here. One party cannot very well contradict another's mere opinion."

It must, of course, be borne in mind that the plaintiff or interested party cannot show that he acquired his familiarity with the handwriting of the deceased in the transaction under investigation. Thus, the plaintiff in the pres

fication-knowl

ent case could not Witness-qualitestify that he be- edge of handwriting of came acquainted decedent. with the handwrit

ing of deceased, wholly or partially, by reason of the note in question. The party's knowledge of the handwriting must be based on other facts. or transactions. 30 Am. & Eng. Enc. Law, 2d ed. 1033; Ware v. Burch (1906) 148 Ala. 529, 42 So. 562, 12 Ann. Cas. 669.

Petitioners earnestly insist that the case is governed in principle by the decision of this court in Roy v. Sanford (1918) 140 Tenn. 382, 204 S. W. 1159. In that case the holder of the note testified, in substance, that he indorsed it to the plaintiff, Roy, "merely for the purpose of making himself competent as a witness against the administrator, to prove the execution of the note." It was very properly held that this was a mere subterfuge to avoid the operation of the statute-a species of "legal jugglery" not to be tolerated.

No such case is presented here.

We are, therefore, of opinion that the trial judge erred in excluding the testimony of plaintiff herein before set out, and in

transaction

directing a verdict Evidencefor the defendants; with decedent and the judgment of note. the Court of Civil

--signature to

Appeals will be affirmed, and th case remanded for further proceedings.

Majority rule.

In a majority of the cases wherein the question has arisen as to the competency of a witness, under the rule excluding testimony as to transactions with a decedent, to testify to the signature or handwriting of the decedent, the courts have held that the witness is competent, as such testimony involves merely a matter of opinion, and not a personal transaction or communication between the witness and the decedent.

Iowa. Sankey v. Cook (1891) 82 Iowa, 125, 47 N. W. 1077; Britt v. Hall (1902) 116 Iowa, 564, 90 N. W. 340; Scott v. Brenton (1914) 168 Iowa, 201, 150 N. W. 56; Daniels v. Butler (1914) 169 Iowa, 65, 149 N. W. 265, decree modified on rehearing in (1915) Iowa, 150 N. W. 1081; Re La Grange (1921) 191 Iowa, 129, 181 N. W. 807. See also Campbell v. Collins (1907) 133 Iowa, 152, 110 N. W. 435. Kansas. Dillon v. Gray (1912) 87 Kan. 129, 123 Pac. 878. See also Bryan v. Palmer (1910) 83 Kan. 298, 111 Pac. 443, 21 Ann. Cas. 1214.

Missouri.-Bates v. Forcht (1886) 89 Mo. 121, 1 S. W. 120; Banking House v. Rood (1896) 132 Mo. 256, 33 S. W. 816. See also Conley v. Johnson (1920) 204 Mo. App. 185, 222 S. W. 891.

New York.-Carroll v. Davis (1879) 9 Abb. N. C. 60; Simmons v. Havens (1886) 101 N. Y. 427, 5 N. E. 73; Wing v. Bliss (1889) 55 Hun, 603, 8 N. Y. Supp. 500, affirmed in (1893) 138 N. Y. 643, 34 N. E. 513; Dolan v. Leary (1901) 68 N. Y. Supp. 91; Hoag v. Wright (1902) 69 App. Div. 381, 74 N. Y. Supp. 1069, reversed on other grounds in (1903) 174 N. Y. 36, 63 L.R.A. 163, 66 N. E. 579; Goetting v. Weber (1902) 71 App. Div. 503, 75 N. Y. Supp. 890. Compare Wilber v. Gillespie (1908) 127 App. Div. 604, 112 N. Y. Supp. 20.

North Carolina.-State ex rel. Peoples v. Maxwell (1870) 64 N. C. 313; Rush v. Steed (1884) 91 N. C. 226;

Hussey v. Kirkman (1886) 95 N. C. 63; Ferebee v. Pritchard (1893) 112 N. C. 83, 16 S. E. 903; Sawyer v. Grandy (1893) 113 N. C. 42, 18 S. E. 79; Satterthwaite v. Davis (1923) 186 N. C. 564, 120 S. E. 221.

Tennessee. Minnis V. Abrams (1900) 105 Tenn. 662, 80 Am. St. Rep. 913, 58 S. W. 645. And see the reported case (KLEIN V. YORK, ante, 452).

Texas.-Martin v. McAdams (1894) 87 Tex. 225, 27 S. W. 255; Re Brackenridge (1922) Tex. Civ. App. —, 245 S. W. 786.

Washington.-Goldsworthy v. Oliver (1916) 93 Wash. 67, 160 Pac. 4. West Virginia. Johnson v. Bee (1919) 84 W. Va. 532, 7 A.L.R. 252, 100 S. E. 486.

Wisconsin.

Daniels v. Foster (1870) 26 Wis. 686; Jones v. Citizens Sav. & T. Co. (1919) 168 Wis. 646, 171 N. W. 648.

In the reported case (KLEIN V. YORK), wherein it is held, in accordance with the above rule, that plaintiff should be allowed to testify that the handwriting and signature of a note which he had had, and had lost, was in the handwriting of the defendant's intestate, the reason for the adoption of this view is said to be that the expression of an opinion as to the genuineness of a decedent's handwriting could not be contradicted by the decedent, even if alive. It is pointed out, however, that the interested witness may not show that his knowledge of the decedent's handwriting was acquired in the transaction under investigation; it must be based on other facts.

And in Scott v. Brenton (1914) 168 Iowa, 201, 150 N. W. 56, the signature permitted to be identified was also on a lost instrument.

In Daniels v. Butler (1914) 169 Iowa, 65, 149 N. W. 265, decree modified on rehearing in (1915) Iowa, -, 150 N. W. 1081, a plaintiff was held

-

to be competent to give an opinion as to the signature of a decedent to a contract under which he claimed an interest in land, although he was not competent to testify to the signing.

Banking House v. Rood (1896) 132 Mo. 256, 33 S. W. 816, was an action by a banking corporation against the estate of a decedent, on a note, wherein two witnesses, who were stockholders and officers in the bank, were allowed to testify that the name signed to the note was the signature of the decedent, and that they saw him sign it. It was said: "The statute declares that no person shall be disqualified as a witness in any civil suit by reason of his interest in the event of the same, as a party or otherwise, 'provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead,

. . the other party to such contract or cause of action shall not be admitted to testify.'. . . It will be observed that the proviso does not exclude the testimony of one party in interest when the other party in interest is dead, but confines the exclusion to a party to the contract or cause of action, while the body of the statute removes the disability of a person caused by his interest in the suit. The exclusion of the proviso is not as broad as the inclusion of the body of the act." And, after drawing this distinction between interested persons and parties to a contract or cause of action, the court said: "Our conclusion, therefore, is that the stockholders of a corporation are not incompetent, on account of interest, to testify as witnesses in a case involving a contract with the corporation, corporation, though the other party to the contract be at the time dead. His competency depends upon the character of the evidence offered. He will be incompetent to testify in regard to transactions and negotiations between himself, as agent of the corporation, and deceased. In regard to independent facts he will be competent. It follows that the witnesses were competent to testify to the genuineness of the signature from their knowledge of it, or as experts. Whether they were com

petent to testify that they saw deceased sign the note would depend upon circumstances. Signing the note by deceased was a part of the transaction which resulted in the contract in issue, and the agent of the corporation who conducted the negotiations, whether a stockholder or not, could no more testify to that fact than to any other fact connected with the negotiation."

The identification by a defendant, of a decedent's signature to receipts in the defendant's possession, has been held not to be testimony as to a transaction with the decedent, or a statement made by him, within the statutory provisions in question. Goldsworthy v. Oliver (Wash.) supra.

In Johnson v. Bee (1919) 84 W. Va. 532, 7 A.L.R. 252, 100 S. E. 486, the question under discussion was considered at some length, the court saying: "The objection interposed to the evidence of some of the plaintiffs as to the handwriting of the signature to the declaration of trust, on the ground of incompetence by reason of interest, is not well founded, if we are to be governed by the weight of authority. Of course, none of these parties would be competent as witnesses to prove the actual signing of the paper by Mrs. Bee, nor to qualify themselves by observation of her act of signing any papers; for that would have been a personal transaction within the meaning of the law. State ex rel. Peoples v. Maxwell (1870) 64 N. C. 313; Rush v. Steed (1884) 91 N. C. 226; Wilber v. Gillespie (1908) 127 App. Div. 604, 112 N. Y. Supp. 20. A decided weight of authority affirms the right of an interested person or party to testify to the handwriting of a sig nature purporting to be that of a deceased person, if he is otherwise qualified, even though he would be an incompetent witness to testify to the act of signing." Continuing, it was said: "As to facts not amounting to or involving such transactions or communications, interested witnesses are competent. This is an unqualified and unlimited implication arising from the very words of the statute. There is no proviso saying they are competent only