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(- Va. -, 122 S. B. 126.) a deed in the name of Lewis. This dence; but it is conceded that there method 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 couri her. There is evidence on behalf of
in permitting counsel for the conthe defendants in error to the effect
testants to ask a nonexpert witness that Lewis M. was fond of Frank's children, and they of him, and that nation, the following questions:
of the proponents, on cross-examihe 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 error, that the whole will, including tion: The paper which I hand you,
Q. I just want to ask this questhe signature, is in the handwriting of Charles M. Adams, the sole bene
-of course, if your Honor does not
think this is proper,-marked "H. ficiary therein, and is a forgery.
G. exhibit 2,"—would you say that They first introduced testimony to show that Lewis M. had declared
is in the same handwriting as the
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 The witness was recalled and was
as to how far it may be carried. asked the following question, and tions involving scientific knowl
Mere abstract questions or ques. answered the same as indicated, edge, as a general rule, would not over the objection of the propo
be permissible, but questions innents: Q. Mr. Jones, you have heard volving the extent of his knowiedge
or observation, or Mr. Charles M. Adams take the wit
-cross-examina. ness stand and state that page 262, bias or prejudice,
his fairness, or his tion of nones. 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
it is claimed that one had forged the Charles M. Adams. 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? A. I do not think it does, Mr. asked, on cross-examination, to look
forged writing is genuine may be 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.
R. C. L. 645, 646, and cases cited. As the witness had testified 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 determine whether his opinion, in the handwriting of Lewknowledge of the
is M. Adams, was asked certain Evidenceknowledge of writing of Lewis questions and was permitted to anhandwriting. 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
per 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
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
inadmissible evidence not
witness had ever seen an enlarged knowledge of his genuine signature, photograph of any description. It and his opinion could not have been
was not a fair test of any value to the jury in arriving -use of enlarged photo
of the knowledge of at a correct verdict. It being congraph on cross- the witness of the ceded or proved that the checks
ordinary writing of were in the handwriting of Charles the testator. It is said, however, M. Adams, the jury were as capable that the answer of the witness that of comparing the signatures to the he "did not know and could not say
Witness-nonwhose signatures they were," ren- will as the witness, expert opinion dered the testimony "entirely harm- and it was error to
as to signature. less." In this view we cannot con- allow him to give his opinion. Vircur. It tended to ginia-Carolina Chemical
Chemical Co. v. Appeal-when
the wit- Knight, 106 Va. 674, 56 S. E. 725; ness as to
Southern R. Co. v. Mauzy, 98 Va. knowledge of the 692, 694, 37 S. E. 285; Virginia R. testator's handwriting, especially Co. v. Andrews, 118 Va. 482, 488, in view of the subsequent testimony 87 S. E. 577; 4 Wigmore, Ev. 2d ed. of Mr. Osborn, and called for a § 1924. character of observation that the Sally J. Adams, one of the conwitness was not expected to pos- testants, testified that she was fasess.
miliar with the handwriting of both William A. Barrett was one of Lewis M. and Charles M., and had the witnesses upon whose testimony frequently seen them write. Therethe will was admitted to probate be- upon she was asked to look at a fore the clerk, but he was not exam- certain paper and also at a memoined by the proponents of the will randum book, and state in whose on the trial in the circuit court. He handwriting each was. She was was called by the contestants and permitted to answer, over the objecstated that all he knew about the tion of the proponents. There was handwriting of Lewis M. Adams
no error in this ruling of the trial was his signature appearing on court.
The ques: checks in payment of his bills. It tions
-identification were asked
of writing. was admitted that all the checks in for the purpose of question were in the handwriting of identifying examples of the genuine Charles M. Adams.
writings of each of her uncles and
to use them as exhibits in the case Contestants were permitted, over
for the benefit of the jury. As we the objection of the proponents, to ask the witness the following ques
have seen, it was not necessary for
these papers to be in the record for tions, and the witness was allowed
another purpose than for comparito give his opinion in answer to the second question:
son, and it was competent to prove
their genuineness by any witness Q. I hand you these checks which
who knew the fact. have been offered in evidence here,
Exception was taken to certain made payable to your order, sup
questions asked Taylor Burke, a posedly signed by L. M. Adams.
witness for the contestants, on the Were these some of the checks from
ground that he was not a handwritwhich you acquired the knowledge
ing expert. He was a member of that you thought you had of the
a private banking house, and testihandwriting of Lewis M. Adams?
fied that for, twenty years, in the Q. In your opinion was the writ
course of his business at the bank, ing on the checks the same as the
it was necessary for him to examwriting on the will?
ine signatures as a daily incident The witness was not an expert, of his business, and this was done and did not claim to have ever seen largely for the purpose of detectLewis M. write, or that he had any ing and preventing forgeries.
(- Va. —, 122 S. E. 126.) In Savage v. Bowen, 103 Va. 540, not full experts and such questions 49 S. E. 668, it was held that wheth- to them were improper. er the witness is qualified to testify as an expert is largely a matter
The questions and answers were in the discretion of the trial court,
as follows: and its rulings allowing a witness
George E. Warfield, Witness. to testify will not be disturbed unless it clearly appears that he was Q. Will you look at that word not qualified. Furthermore, that
“Adams" on the photograph and bank officials and clerks of court of tell me whether they are in the long experience in examining and same handwriting or not? comparing signatures and writings
A. I could not say. may, in the discretion of the trial Q. Turning to exhibit No. 12 in court, give their opinion as to
to the album, I will ask you to look at whether or not the body of the the three writings containing the will, the signature thereto, and "Va." and part of the word "Alex.” the name of one attesting witness, and tell you that the top one is a were written in the same ink as the photograph from the will and the name of the other attesting witness, second one is a photograph from and as to which of the two was the the writing of Charles and the third later writing.
is a photograph from the writing of The trial court committed no er- Lewis. Which do you think looks
accepting -banker as
more like the top photograph? handwriting Mr. Burke as
A. I don't know what I think expert.
handwriting expert about it. I haven't anything to do and permitting him to be examined with it. as such.
Q. In your opinion, which of the Furthermore, the proponents of two bottom pictures looks more like the will introduced similar evidence the top—the second or the third on their own behalf after the fore- one? going testimony of Mr. Burke had A. The third one looks more like been given, and, if the ruling of the
the top. trial court as to Evidence-waivMr. Burke was er
Carroll Pierce, Witness. ror, it was waived.
Q. I want to know which writing New York L. Ins. Co. v. Taliaferro, most resembles the writing on the 95 Va. 522, 28 S. E. 879; Moore will, the one marked "S. J. A. exLumber Corp. v. Walker, 110 Va. hibit 6," written by Lewis, or the 775, 67 S. E. 374, 19 Ann. Cas. 314; one marked "S. J. A. exhibit No. Snarr v. Com. 131 Va. 814, 109 S. 1,” which you hold in your hand E. 590.
right now? The proponents offered two bank- The witness: I cannot answer ers as witnesses to give their opin- the question, because there is such ion upon the handwriting of the a difference in the time when these will and the signature thereto. things were written. That was They had experience of twenty-five written in 1900, before I ever saw and twenty-seven years, respective. Mr. Adams's handwriting at all, ly, and had experience in passing and this was written eighteen years upon signatures to writings. Each later (showing). of them testified that in his opin- Q. I hand you a photograph of ion the will was in the handwriting the writing of the word "Adams," of Lewis M. Adams. Certain ques- and ask you if you can say, compartions were asked one or the other of ing that with the will, whether in them, and they were allowed to an- your opinion those are the genuine swer them over the objection of the signatures of Lewis Adams, or any proponents that the witnesses were of them?
er of error.