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(- Va, -, 122 S. E. 126.) them respectively, are admissible in giving the viewpoint merely of such evidence to enable expert witnesses expert, and that the jury must form to bring the differences between genu- its verdict from all the evidence in the ine and alleged forged writings to the case, and that it is the duty of the attention of the jury.
jury to look at the original writings Appeal - error in instruction and, from them and the other evidence declaration of testator.
in the case, form its verdict. 21. It is error to instruct the jury in Evidence – experts — weight. a will contest where the alleged will 23. Opinion evidence as to handis claimed to be a forgery, that state- writing is valuable when direct eviments of testator as to how he in- dence of a reliable and satisfactory tended to dispose of his property go character as to the factum cannot be only to the question of the probability obtained, but it is subject to many or improbability of making the dis- abuses and is of a dangerous nature, position set forth in the alleged will, especially when given by experts in and do not affect the question of the employ of and paid by parties ofwhether or not the alleged will is in fering it. testator's genuine handwriting.
[See 11 R. C. L. 586 et seq.; 2 R. C. - refused instructions duty with L. Supp. 1276; 4 R. C. L. Supp. 712.] respect to exhibit.
Appeal refusal of new trial. 22. It is error in a will contest in 24. Errors in evidence and instrucwhich the purported will is claimed to tions do not require reversal where be a forgery, to refuse to instruct that there is nothing to indicate that a new photograph exhibits made by a hand- trial will result in a different verdict writing expert are to be considered as from that already reached.
ERROR to the Circuit Court of the City of Alexandria (Brent, J.) to review a judgment refusing to admit to probate a certain paper writing as the last will and testament of Lewis M. Adams, deceased. Affirmed.
The facts are stated in the opinion of the court.
Mr. J. K. M. Norton, for plaintiff in His opinion may or may not have error:
much weight. But he is not compeAn instruction that statements of tent to compare other writings; that Lewis M. Adams as to how he intended is the province of the expert. to dispose of his property at his death .17 Cyc. 184; Massey v. Farmers' go only to the question of the proba- Nat. Bank, 104 Ill. 327; White Sewing bility or improbability of his making Mach. Co. v. Gordon, 124 Ind. 495, 19 the disposition of his property set Am. St. Rep. 109, 24 N. E. 1053. forth in the alleged will, and do not The book of photographs prepared affect the question of whether it is in by A. S. Osborn, an expert witness his genuine handwriting or not, is im- for contestants, was inadmissible in proper.
evidence. Taylor Will Case, 10 Abb. Pr. N. S. Johnson V. Com. 102 Va. 930, 46 300; Burge v. Hamilton, 72 Ga. 568; S. E. 789; United States v. Ortiz, 176 Morvant's Succession, 45 La. Ann. 207, U. S. 422, 44 L. ed. 529, 20 Sup. Ct. Rep. 12 So. 349; Hoppe v. Byers, 60 Md. 381; 466; Maclean v. Scripps, 52 Mich. 214, Lane v. Hill, 68 N. H. 275, 73 Am. St. 17 N. W. 815, 18 N. W. 209; Tome v. Rep. 591, 44 Atl. 393; Lappe v. Gfel- Parkersburg Branch R. Co. 39 Md. 36, ler, 211 Pa. 462, 60 Atl. 1049.
17 Am. Rep. 540; 9 Enc. Ev. pp. 779, A photograph is, at best, only sec- 780; Crane v. Dexter Horton & Co. 5 ondary evidence. If admitted for any Wash. 479, 32 Pac. 223; Hynes v. Mcpurpose, the jury should be properly Dermott, 82 N. Y. 51, 37 Am. Rep. 538; instructed and cautioned as to its pro- Taylor Will Case, 10 Abb. Pr. N. S. bative value.
318; Howard v. Illinois Trust & Sav. Scott v. New Orleans, 21 C. C. A. Bank, 189 Ill. 568, 59 N. E. 1106. 402, 41 U. S. App. 498, 75 Fed. 373; To tell a witness he had testified Whitaker v. Parker, 42 Iowa, 585. in a certain way at a former trial, and
A witness who has seen a testator then proceed on the theory that the write, though not an expert, is compe- witness had so testified at a former tent to testify and give his opinion as trial, is highly improper, and not perto the handwriting of the alleged will. missible.
Norfolk & W. R. Co. v. Arrington, Burks, J., delivered the opinion of 131 Va. 564, 109 S. E. 303; Davis v. the court: Franke, 33 Gratt. 424; 40 Cyc. 2719; This is a contest over a will of Unis v. Charlton, 12 Gratt. 485.
which the following is a copy: Messrs. Woolls & Bryan and Carlin, Carlin, & Hall, for defendants in er- "Alex., Va., September 10th, 1920. ror:
"My Last Will. The lower court should not comment “I give all my real estate and on or express its opinion as to the
cash in bank to my brother, Charles weight to be given to any particular
M. Adams. evidence. Bear v. Bear, 131 Va. 447, 109 S. E.
"I request no inventory and no
bond. 313; Norfolk & W. R. Co. v. Poole, 100 Va. 148, 40 S. E. 627; Burk, Pl. & Pr.
“L. M. Adams." 2d ed. § 256.
This paper was admitted to proWitnesses familiar with the hand
bate by the clerk of the circuit court writing of Charles and Lewis Adams could properly identify genuine ex
in vacation, upon proof by two witamples of the handwriting of both for
nesses that it was wholly in the comparison and examination by the
handwriting of the testator. jury.
appeal, all persons interested in the Nagle v. Schnadt, 239 Ill. 597, 88
probate of said will were sumN. E. 178.
moned, and a trial de novo was had Witnesses engaged in the banking
before a jury, which found that the business and accustomed to examine paper called a will was not the true signatures may competently express
last will and testament of Lewis an opinion as to the genuineness of M. Adams. handwriting and give reasons for their There were four brothers in the opinion.
family, Ephraim, Charles M., Lewis Savage v. Bowen, 103 Va. 544, 49 M., and Frank. The first two menS. E. 668.
tioned are still living. Frank died An expert witness on handwriting a few years before Lewis M., leavmay competently support his opinion ing surviving him his widow and by referring to original and genuine
two daughters, who are the defendwritings, and photographs of them, as
ants in error. Frank had owned a compared with the alleged will in con
small grocery store in Alexandria, troversy. Rowell v. Fuller, 59 Vt. 688, 10 Atl.
which, by his will, he left to his 853.
brother, Lewis M.; but it is said Exhibits prepared by a handwrit
that it was not worth as much as ing expert, consisting of photographs he owed Lewis M. at the time. of the alleged will, and of words, parts Charles M. and Lewis M. never of words, and parts of genuine signa- married, and the latter had lived tures, placed in juxtaposition for the nearly all his life with Charles M., purpose of comparison and in explana- without any charge for board, and tion of the witness's opinion, were
the most intimate and devoted competent and admissible in evidence.
relations existed between them, Brown v. Hall, 85 Va. 146, 7 S. E. 182; Hanriot v. Sherwood, 82 Va. 1;
Charles M. frequently assisted in United States v. Ortiz, 176 U. S. 430,
conducting the store and at times 44 L. ed. 533, 20 Sup. Ct. Rep. 466;
ran it alone. He did a large part of Johnson's Case, 102 Va. 930, 46 S. E. the bookkeeping, and made prac789; Wigmore, Ev. $ 797; State v. tically all of the deposits in bank, Skillman, 76 N. J. L. 464, 70 Atl. 83;
and signed the checks in the name State v. Ready, 77 N. J. L. 329, 72
of Lewis, by which the money was Atl. 445; Wenchell v. Stevens, 30 Pa.
drawn out of the bank. He signed Super. Ct. 527; Howard v. Russell, 75 Tex. 174, 12 S. W. 525; Storey v. First
the name of Lewis to other papers Nat. Bank, 24 Ky. L. Rep. 1799, 72
whenever it was necessary to have S. W. 319; Luco v. United States, 23
the signature of Lewis. In one inHow. 531, 16 L. ed. 545.
stance he signed and acknowledged
122 S. E. 126.) a deed in the name of Lewis. This dence; but it is conceded that there method of
of doing business was was abundant evidence to support known to and approved by Lewis. the verdict, and that the verdict At the time of the death of Frank cannot be set aside unless some erhe was living separate and apart ror was committed in the rulings on from his wife, and a suit for divorce the evidence, or on the instructions. by her was pending, but Lewis still
Objection was made and excepmaintained friendly relations with
tion taken to the action of the court her. There is evidence on behalf of the defendants in error to the effect
in permitting counsel for the con
testants to ask a nonexpert witness that Lewis M. was fond of Frank's
of the proponents, on cross-examichildren, and they of him, and that
nation, the following questions: he had said he intended to leave his
Q. I hand you this paper about property to Frank's son, and, after
the same size, and I ask you, in his death, he intended to leave it to
your opinion, whose handwriting the defendants in error.
that is (handing witness docuIt is claimed by the children of
ment) ? Frank, who are the defendants in
Q. I just want to ask this queserror, that the whole will, including
tion: The paper which I hand you, the signature, is in the handwriting of Charles M. Adams, the sole bene
-of course, if your Honor does not ficiary therein, and is a forgery.
think this is proper,-marked "H.
G. exhibit 2,"—would you say that They first introduced testimony to
is in the same handwriting as the show that Lewis M. had declared
handwriting on the will, in your his purpose to leave his property to
opinion? them, but, after Charles M. had introduced evidence of an intention
Immediately after the last questo leave the property to him, they
tion, counsel for the contestants asked leave to have all evidence of asked, and the witness answered, as declarations of the testator strick
follows: en out, but the court declined to do Q. Let me give you the will for So.
The contestants also intro- the purpose of comparison (handduced evidence that, after the death
ing witness will). of Lewis M. and before his burial, A. It is not as well written as the Charles M. had a conversation with will. It is somewhat different. an aunt of the contestants, which
No answer was given to the first was heard, in whole or in part, by
question, and the answer of the secseveral other witnesses, in which
ond was equivocal. The plaintiffs Charles M. stated that Lewis M. left
in error have failed to show in what no will, and that he had sat up late
way, if any, they were prejudiced with Lewis two nights before he by the question. If there was error, died, urging him to make a will, but it was harmless. that he declined to do so unless and
The proponents of the will ofuntil he could get Judge Norton to
fered to prove that the will was draw it for him. The will is dated
wholly in the handwriting of the September 10, 1920, and Lewis M. testator, by a nonexpert witness died November 21, 1920.
who had seen the testator take There were two trials of the case down orders in pencil in his store, in the circuit court, and Charles M. and had seen him write in his books testified at both. He denied having at the store, also in pencil, but who made the statements attributed to had never seen him make his sighim, but his testimony at the two nature. When asked to give his trials is not altogether consistent. opinion "as to whose handwriting Each side offered both expert and that paper is, both the paper itself nonexpert testimony. There was a and the signature," he replied, “I motion to set aside the verdict as would take it to be L. M. Adams's." contrary to the law and the evi- On cross-examination, the wit
ness was shown a book of accounts that comparisons of handwriting of Lewis M. Adams, and was asked may be made with
-comparison to look at page 262 and say whether any writing proved with other that page, or any part of it, was in or admitted to be
writing. the handwriting of Lewis M. Ad- genuine, whether already in the ams. Objection was made on the cause or not. Hanriot v. Sherwood, ground that a nonexpert witness 82 Va. 1: Johnson v. Com. 102 Va. could not be asked such a question, 927, 46 S. E. 789; Keister v. Philbut the objection was overruled, and ips, 124 Va. 585, 98 S. E. 674, overthe witness answered, “Basing my ruling Rowt v. Kile, 1 Leigh, 216, opinion on the bills that I got from and Burress v. Com. 27 Gratt. 934. Mr. Adams, I would say it was.”
The line of permissible cross-exThereupon Charles M. Adams, the amination of the nonexpert witness beneficiary in the will, was put up- is not altogether as extensive as on the stand by the contestants, and that of the expert, but the same testified that page 262 was wholly principle is involved, and the trial in his handwriting.
court must exercise its discretion
as to how far it may be carried. The witness was recalled and was
Mere abstract questions or quesasked the following question, and
tions involving scientific knowlanswered the same as indicated, edge, as a general rule, would not over the objection of the propo
be permissible, but questions innents:
volving the extent of his knowledge Q. Mr. Jones, you have heard
or observation, or Mr. Charles M. Adams take the wit
-cross-examinaness stand and state that page 262,
his fairness, or his tion of noner
bias or prejudice, which you were of opinion was in
are permissibile. Where, as here, the handwriting of Lewis M. Ad
two persons write much alike, and ams, was in the handwriting of Charles M. Adams.
it is claimed that one had forged the Does that
writing of the other, and the genchange your opinion as to whose
uine writings of both are before the handwriting is contained on the
court, a nonexpert witness who has will and whose signature is on the
given his opinion that the alleged will ?
forged writing is genuine may be A. I do not think it does, Mr. asked, on cross-examination, to look Smith.
at one of the gen- -opinion as to The handwriting of Charles M. uine writings and genuine writ
ing. Adams was very similar to that of
say whether it is his brother Lewis M. Adams, and
in the handwriting of one or the all the writings introduced were the
other. This is not an unfair test of genuine writings of one or the oth
his knowledge and observation. 11 er. As the witness had testified
R. C. L. 645, 646, and cases cited. that the whole will, including the
The nonexpert witness Jones, signature, was in the handwriting
who had testified that the will and of Lewis M. Adams, it was impor
the signature thereto were, in his tant to determine whether his opinion, in the handwriting of Lewknowledge of the
is M. Adams, was asked certain Evidenceknowledge of
questions and was permitted to anwriting of Lewis handwriting. M. was such as to
swer the same over the objection enable him to distinguish it from
and exception of the proponents. that of Charles M. It was legit- The questions were: imate to ask him on cross-examina- Q. Mr. Jones, I am going to hand tion the question propounded as to you a photograph containing eight the entries on page 262.
pictures of the handwriting of the Whatever may be the law else- word “Adams," and I am going to where, it is well settled in this state ask you whether they are in the (Va. 122 8. E. 126.) handwriting of Lewis M. Adams, as which appears in numerous of these you recollect from what you saw ? signatures. It will be seen that
Q. In whose handwriting are there are certain of them that are those words, “Adams,” on that pho- written with more freedom and tograph? Are they in the hand- force; better control; others that writing of Lewis M. Adams?
are more hesitating. The two will Q. Are any of them in the hand- signatures and the handwriting on writing of Lewis M. Adams?
the will itself is of a hesitating Q. Are any of them in the hand- quality which appears frequently in writing of Charles M. Adams? the handwriting of Charles M. Ad
Q. Are any of them in the same ams, and is here illustrated. It alhandwriting as the "Adams” in the so shows these small 'd's' especially will?
that I have called attention to in a Q. Do you think that all of those larger form; the small 'd' with the on that paper are in the same hand- peculiar curve in the middle part writing?
of the letter. The portion up toTo all of these questions the wit
ward the middle part of the old that ness answered that he did not know appears in one of the capital letter and could not say whose signatures
'A's. That is the same form as the they were. The character of the
beginning part of the 'd. You will photograph mentioned is best de
notice that the fourth one from the scribed by Mr. Osborn, the contest
bottom has that same particular ants' expert, who took it. On this
curvature in the capital letter itsubject he testified as follows:
self, which is occasionally charac“This shows eight signatures pho
teristic of this handwriting.” tographed directly from the origi
It will be observed that it is not nal and enlarged as they here ap
a photograph of any signature at pear, directly on the plate. There all, but simply of the word "Adare six signatures of Charles M. ams;" that it is enlarged; that the Adams and the two Adamses from “degree of enlargement shows certhe will. This degree of enlarge
tain details which it is more difficult ment shows certain details which
to see in the smaller size;" that it it is more difficult to see in the
“shows the detail in angularity smaller size. For example, a detail which occurs frequently in the that I did not call attention to is handwriting of Charles M. Adams the angle that appears at the base and which occurs throughout the of numerous letters in Charles M. will.” That it shows the infirmative Adams's writing. For example, line, or the “hesitation,” spoken of we have three examples in the three by the expert, and shows other fealower ones, the finishing part of the
tures that would be of value to the small letter 'a.' The last line is expert, but unobservable by the 'Adams' from the will, and the nonexpert. This photograph is fourth one from the top is the 'Ad
filed with the record, and it is said ams' from the will; one Charles M.
the numbers 4 and 8 were taken Adams and the other L. M. Adams.
from the will. The enlargement That shows the detail in angularity shows a marked difference in the which occurs frequently in the detailed appearance of the enlarged handwriting of Charles M. Adams name. We are of opinion that this and which occurs throughout the was an unfair and improper use of will. There is a tendency towards the photograph with the nonexpert a sharp angle at the base of the witness. It had not been introletter which is not characteristic of duced as evidence at that time, no the handwriting of L. M. Adams explanation of any kind had been and is characteristic of the hand- given it, it had not been shown to writing of Charles M. Adams. Al- be an enlargement of the word so the infirmative line, or the hesi. "Adams" written by anyone contation that I have already described, nected with the case, nor that the