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(194 Ky. 665, 240 8. W. 368.) band did business, and he and the there are a few misspelled words, bank's teller, Mr. Freeman, pro- but in some of the other genuine nounced the paper as being in the writings introduced at the trial handwriting of J. W. Strode. Ac- there are also found some miscordingly they and appellant went spelled words. It is also pointed out before the county court and probated by the expert, and perhaps one or it upon the testimony of Threlkeld two other witnesses for contestant, and Freeman.

that the whole writing of the will At the first trial in the circuit appears to have been made with a court about nine witnesses testified finger movement and to have been in favor of the genuineness of the nervously written, while, as insisted, contested paper, while about the the compared papers appear to have same number testified to the con- been written with a muscular movetrary, and in the latter list was ment and with greater ease. But, Freeman, upon whosè testimony the be this as it may, we know from county court probated the will, and observation and experience that who stated in the circuit court that one can produce an exact facsimile he had changed his mind. Among of his writing upon any two differthe list of witnesses who testified ent occasions. Many elements enter for contestant was an expert from into the creation of the differences, Columbus, Ohio, who acknowledged such as the character of paper; that he was receiving for his serv

whether written with pen or pencil, ices as a witness his expenses and and, if the latter, whether it was $100 per day. Of the number who sharp or dull; the position of the testified in favor of the genuineness writer and of the paper at the time, of the will many of them had seen as well as the physical condition and the decedent not only write his mental attitude of the writer toward name, but had seen him write other the thing being written. papers and documents besides, while Of the parol testimony heard upa much less number of witnesses tes- on the first trial, the utmost that tifying on the other side had seen may be said is that there was no him do any writing, and perhaps preponderance either way, which is none of them had seen him do more to ignore the contradictory attitude than write his name. So that we of the witness Freeman, and the feel that we might safely conclude referred to superior opportunities that the witnesses who testified for of contestee's witnesses to become the contestee showed themselves up- familiar with and know the handon the whole to be the better quali- writing of the decedent; and we are fied. The expert, like all of his class, by no means prepared to say that pointed out what he conceived to be the testimony of the expert witness discrepancies between the writing (who, strange to say, did not testify forming the will and that of other on the last trial, nor was his former papers and documents, which were testimony offered to be read) readmitted to be genuine and were in- solved the doubt either the one way troduced for purposes of comparison. or the other. Such testimony, as He particularly dwelt upon the for- has often been held, mation of the small letters “b” and is of the weakest

Evidence

weight-expert “r,” and the capital letters “J” and character, and witness to

handwriting. "S," found in the will, and it must should be received be admitted that at least the greater and weighed with great caution. number of those letters found in the (Kentucky Traction & Terminal Co. will are different from most of them v. Humphrey, 168 Ky. 611, 182 S. found in the other writings; but in W. 854), for the witness is not only the latter writings there are found most generally biased toward the some of the same letters of the same side employing him, but his opinions form and shape as those found in the are based, not upon facts within his will. It is shown that in the will knowledge, but upon what may be

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of evidence as

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told or shown to him by others. The document and take unto herself only “standard" papers, introduced for a portion of her husband's property Appeal-review

comparison, are when only a far less number of

brought up with the words would have been required to to handwriting.

record, and we have devise and bequeath to her all of it. closely inspected them in conjunc- None of the handwriting of appeltion with the paper in contest, par- lant was introduced for the purpose ticularly those written in pencil; of showing any similarity between it and, while we observe some of the and the paper in contest. The irredefects pointed out by the expert sistible conclusion to be drawn from and some of the other witnesses, yet all

all the facts and circumstances no one can make the comparison proven in the case, without taking without concluding that the general further time or space to enumerate appearance of the writings is the them, is, according to our view, more same, and a casual observer would favorable to the genuineness of the no doubt unhesitatingly pronounce paper than against it. them as executed by the same per- Under such circumstances, did the son.

court abuse its discretion in setting Aside from the above testimony, aside the first verdict so as to call for there are some circumstances in the the application of the rule of praccase which point strongly to the tice supra? Fully realizing that a genuineness of the contested paper. larger discretion will be allowed the Perhaps the one of least importance trial court in the granting of a new is that on the day it was written the trial than in refusing one, for the decedent had visited at Winchester, reason and within the limitations Kentucky, an uncle to whom he was hereinbefore stated, we are still very much attached, and had re- called upon to determine what is inturned home no doubt with the belief cluded within the meaning of the that he would not live, which proved phrase "the exercise of a sound distrue, because he died the next day. cretion” within that rule, or, conThe paper must have been written versely stated, what would constithat night, when the testator was dis- tute "an abuse of discretion" so as tressed and disturbed, and when he to authorize this court to direct the was fully impressed with the fact of reinstatement of the first verdict. the uncertainty of life, since his Evidently each case must be deteruncle had been suddenly attacked. mined upon its own peculiar facts He had expressed on a number of and circumstances; but, whatever occasions his intention to execute a may be the true circumscribing limwill in favor of his wife, and there its of the terms referred to, we are is no circumstance shown in the case satisfied that it was never intended why he would not want her to share to be announced by this or any other all, or at least the greater portion court as a sound doctrine that a trial of, his property, since she had court exercises a sound discretion," helped him to acquire it. That the with no authority to interfere by a wife did not herself forge the will is reviewing court, in granting a new not only shown by her repeated trial for insufficiency of evidence to statements that her husband left no support the verdict when it was will, but strongly by the fact that equiponderant (or nearly so),

and she proceeded to wind up his estate the finding of the as though he was intestate, and ac- jury would be un

-granting new tually sold some of the property doubtedly

tion-equiponproper

derant evidence. which the paper, if genuine, devised and sustainable if to her. Surely no other person rendered either way.

Clearly in would forge the paper without the that case there is an abuse of discrewife's knowledge or consent, and if tion within the rule, and the duty of she is guilty it is passing strange the reviewing court to interfere by that she would write such a long exercising its authority arises. A

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(194 Ky. 665, 240 8. W. 368.) contrary holding would lodge with cases, we feel that it may be safely the trial court the power to retain a said that when the evidence and case on the docket indefinitely, or proven circumstances are equiponuntil a jury could be found which derant in convincing effect it is an would return a verdict in accordance abuse of discretion by the trial court with its conception of the facts, not- to set aside the verdict. However, withstanding the evenly balanced in this case, as we have briefly atcondition of the testimony. Such a tempted to show, the evidence upon discretion, if possessed by the court, the first trial was more convincing would not only be an unwarranted as to the genuineness of the paper in encroachment upon the proper and contest than that it was spurious. legitimate functions of the jury, but It results, therefore, that the court it would tend to delay the final dis- erred in failing to sustain the moposition of causes, not to mention tion on the last trial to reinstate the the arbitrary power with which it first verdict and render judgment would vest trial courts. So that, thereon. Wherefore the judgment howsoever much further the author- is reversed with directions to proity of this court may extend in such ceed in conformity with this opinion.

ANNOTATION.

Review on appeal of evidence as to genuineness of disputed document.

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This annotation is supplemental to In Toler v. Brown (1923) Ark. other annotations on the same point 247 S. W. 1075, involving the vain 6 A.L.R. 500, and 12 A.L.R. 212. lidity of an alleged holographic will, Like its predecessors, its purpose is the brother of the decedent testified to collect cases showing the extent to that he was familiar with his brothwhich the appellate courts have them- er's handwriting and that the alleged selves assumed to determine the genu- will was not in his brother's handineness of a disputed document.

writing. Other witnesses who testiIn Brown v. Welch (1923) Ala. fied as experts testified that the hand

96 So. 610, the appellate court, writing was not the same as an adupon an inspection of the original mittedly genuine specimen, and other papers introduced in evidence con- circumstances tended to support such taining the genuine signatures of the testimony. It was held that there was respective parties, and the will pro- sufficient evidence to support the findpounded for probate, came to the con- ing of the jury that the alleged will clusion that the court below properly was not genuine. refused to admit the alleged will to In Re Newhall (1923) Cal. probate.

A.L.R. -, 214 Pac. 231, it was held In Straughan v. Bennett (1922) 153 that as there was evidence sufficing to Ark. 254, 240 S. W. 30, involving the support a verdict finding a will to validity of a mortgage, signed by have been entirely written, dated and mark, which the alleged mortgagor signed in the handwriting of the tesand his wife both testified that they tatrix, a judgment in that behalf did not execute, the wife testified that would not be disturbed upon appeal, she could write a little and could although the handwriting expert write her name, and always wrote her called by the contestant gave as his own name when signing a deed, while opinion that the changes and alteraon the other hand the notary before tions in the will had been made by a whom the mortgage was acknowledged

third person. testified as to its execution by her. It In Sellers v. Kincaid (1922) 303 Ill. was held that the evidence did not pre- 216, 135 N. E. 429, the appellate court ponderate against the finding of the made its own comparison of the sigchancellor that the mortgage was nature to a will with admittedly gengenuine.

uine signatures, and came to the con

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clusion that the finding of the jury were in the handwriting of the decethat such signature was not that of dent, where twelve witnesses who the decedent was against the weight were familiar with the handwriting of evidence. The court said: "As and signature of the decedent testified these [admittedly genuine signatures] positively that the notes were not have all been certified for examination written or signed by him, and two on review, this court is not in the handwriting experts testified that the same position with reference to them signatures on the notes were not, in as it is regarding the testimony of their judgment, in the same handwritwitnesses heard before the jury, but is ing as an admittedly genuine signain as good a position as was the jury ture. The appellate court also made to decide on a matter of comparison." its own comparison of photographic

In Jennings v. Glover (1919) 214 III. copies of such signatures. App. 359, which involved a claim filed

The reported

(STRODE V. against the estate of a deceased per- STRODE, ante, 313) involves the auson, based upon an alleged promissory thenticity of an alleged holographic note, the court declined to interfere will. A verdict finding it to be genuwith a verdict finding that the signa- ine had been set aside by the trial ture on the note was not that of the

court and a new trial ordered. The decedent, where witnesses testifying appellate court, in considering the to its genuineness, two of whom were propriety of such action, made its officers in a bank in which decedent own comparison of the standard pahad a checking account, one a former pers containing testator's admittedly employee in decedent's store, and the

genuine handwriting with the paper other a person who had had business in contest, without, however, being transactions with the decedent and

convinced that the discrepancies had received checks from him, were pointed out by an expert testifying opposed by seven witnesses, three of

for the contestant were sufficient to whom were officials in another bank

indicate that the alleged will was not in which decedent kept an account, genuine. The court also points out two were formerly clerks in his store,

that, of the witnesses who testified in and two were persons with whom he

favor of the genuineness of the will, had done business, and by two wit- many had seen the decedent not only nesses who qualified as handwriting write his name, but had also seen him experts.

write other papers and documents, In State v. Wilson (1920) 189 Iowa, while a much less number of wit1057, 179 N. W. 305, the appellate nesses, who testified on the other side, court declined to disturb a verdict had seen him do any writing, and perfinding that a signature was not genu- haps none of them had seen him do ine, notwithstanding the testimony of more than write his name; and that an expert that it was genuine, where aside from the handwriting evidence the person whose signature it purport- in the case, there were other circumed to be denied its genuineness, and a stances pointing strongly to the genugenuine signature was also in evi- ineness of the contested paper. It dence so that comparison could be accordingly comes to the conclusion made by the jury.

that the court below erred in setting In Castner v. Castner (1922) Ky.

aside the verdict and granting a new 245 S. W. 281, an action upon

trial. promissory notes alleged to have been In Bates v. Hogg (1923) executed and delivered by a person 251 S. W. 620, the court refused to insince deceased, it was held that a ver- terfere with a verdict finding a sigdict of no cause of action was not nature to a promissory note to be against the evidence, notwithstanding genuine, where, although the alleged the testimony of a witness that he was maker denied having signed it, bank present and saw the execution and de- officials familiar with his signature livery of the notes, and the testimony testified that they believed it genuine, of two other witnesses that the notes and his son, for whom he was alleged

Ky.

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to have signed it as surety, testified similar to that of the beneficiary that after preparing the note he sent thereunder. an employee with it, to the home of

In Re Henry (1923) Pa. ' -, 120 his father, and the signature was on Atl. 454, it was held that the orphans' it when it was returned, and he then court, to which a will had been prethought that it was his father's sig

sented for probate, properly denied an nature; although some of the wit

issue to the common pleas on the quesnesses failed to state that they had

tion of forgery where its execution seen the defendant write, or had seen by the testatrix was proven by crediwriting admitted by him to be his.

ble witnesses and the evidence to the In Hagan's Succession (1922) 150 contrary was merely opinion evidence, La. 934, 91 So. 303, an appeal in a will given by bank officials and handwritcontest in which the genuineness of ing experts. In further support of its an alleged holographic will giving all decision the court said: “It may not the property of the testatrix to her be amiss to add that the weight of husband had been sustained in the opinion evidence on a question of court below, the appellate court re- handwriting depends upon the cogenviewed the evidence, making its own cy of the reasons given; here they do comparison of the will with admitted- not appeal to us as convincing. As ly genuine specimens of the handwrit- stated by Judge Gresham in Risley v. ing of the testatrix, and came to the Indianapolis, B. & W. R. Co. (1877) ? conclusion that it was not written by Biss. 408, Fed. Cas. No. 11,859: 'A her.

variance in a signature is not necesIn Wadsworth's Succession (1922) sarily proof of its being a forgery. - La. 92 So. 760, an appeal from

Dissimilitude may be occasioned by a judgment declining to set aside the

a variety of circumstances, by the probate of an alleged will, the appel- state of health and spirits of the late court made its own comparison

writer, by the materials, by his posibetween admittedly genuine signa

tion, or by his hurry or care.'

Altures of the decedent and that ap

lowance must be made here for the pended to the will, and reaffirmed its

circumstances under which the quesgenuineness, which was also support

tioned signature was written; Mrs. ed by the testimony of a disinterested Henry was eighty-three years of age, eyewitness to its execution and the in feeble health, bereaved by the naturalness of the disposition made

recent death of a son, afflicted with therein.

failing sight, and suffering from a

broken left wrist, and, according to In Chillicothe Trust Co. v. French

the evidence, handicapped by a de(1922) - Mo. App. —, 241 S. W. 984,

fective pen. It is not, therefore, surit was held that the evidence justified

prising that in attempting to write a finding that the signature to the note

the first name in full,- not her usual sued on was genuine, notwithstanding

habit,-she deviated from the line and the testimony of handwriting experts

omitted, but later inserted, the ‘e, or to the contrary. The court, however,

that she began so close to the seal reversed the judgment because of er

that the last name ran into it, or that ror in the instruction given the jury

the pen was lifted from the paper at as to the effect to be given to such

some unusual places, or that near the testimony.

end of the signature there are signs In Re McDonough (1922) 201 App. of haste. All of these, to our mind, Div. 203, 193 N. Y. Supp. 734, involy- more suggestive of the infirm ing the genuineness of an alleged hand of age than the deft hand of codicil, the court compared the hand- crime; in other words, it seems too writing and signature with genuine clumsy for a forgery. The signature specimens that of the testatrix, and resembles that of Mrs. He ry, and the expressed the opinion that it was not evidence, taken as a whole, does not her handwriting, but that the hand- leave sufficient doubt about it to warwriting of the codicil was strikingly rant the granting of an issue.”

27 A.L.R.-21.

are

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