William A. Barrett was one of the witnesses upon whose testimony the will was admitted to probate before the clerk, but he was not examined by the proponents of the will on the trial in the circuit court. He was called by the contestants and stated that all he knew about the handwriting of Lewis M. Adams was his signature appearing on checks in payment of his bills. It was admitted that all the checks in question were in the handwriting of Charles M. Adams.

Contestants were permitted, over the objection of the proponents, to ask the witness the following questions, and the witness was allowed to give his opinion in answer to the second question:

Q. I hand you these checks which have been offered in evidence here, made payable to your order, supposedly signed by L. M. Adams. Were these some of the checks from which you acquired the knowledge that you thought you had of the handwriting of Lewis M. Adams?

Q. In your opinion was the writing on the checks the same as the writing on the will?

The witness was not an expert, and did not claim to have ever seen Lewis M. write, or that he had any

Witness-non

knowledge of his genuine signature, and his opinion could not have been of any value to the jury in arriving at a correct verdict. It being conceded or proved that the checks were in the handwriting of Charles M. Adams, the jury were as capable of comparing the signatures to the checks with the will as the witness, expert-opinion and it was error to to signature. allow him to give his opinion. Virginia-Carolina Chemical Co. V. Knight, 106 Va. 674, 56 S. E. 725; Southern R. Co. v. Mauzy, 98 Va. 692, 694, 37 S. E. 285; Virginia R. Co. v. Andrews, 118 Va. 482, 488, 87 S. E. 577; 4 Wigmore, Ev. 2d ed. § 1924.

as

Sally J. Adams, one of the contestants, testified that she was familiar with the handwriting of both Lewis M. and Charles M., and had frequently seen them write. Thereupon she was asked to look at a certain paper and also at a memorandum book, and state in whose handwriting each was. She was permitted to answer, over the objection of the proponents. There was no error in this ruling of the trial court. The questions were asked for the purpose of identifying examples of the genuine writings of each of her uncles and to use them as exhibits in the case for the benefit of the jury. As we have seen, it was not necessary for these papers to be in the record for another purpose than for comparison, and it was competent to prove their genuineness by any witness who knew the fact.

identification of writing.

Exception was taken to certain questions asked Taylor Burke, a witness for the contestants, on the ground that he was not a handwriting expert. He was a member of a private banking house, and testified that for twenty years, in the course of his business at the bank, it was necessary for him to examine signatures as a daily incident of his business, and this was done largely for the purpose of detecting and preventing forgeries.

In Savage v. Bowen, 103 Va. 540, 49 S. E. 668, it was held that whether the witness is qualified to testify as an expert is largely a matter in the discretion of the trial court, and its rulings allowing a witness to testify will not be disturbed unless it clearly appears that he was not qualified. Furthermore, that bank officials and clerks of court of long experience in examining and comparing signatures and writings may, in the discretion of the trial court, give their opinion as as to whether or not the body of the will, the signature thereto, and the name of one attesting witness, were written in the same ink as the name of the other attesting witness, and as to which of the two was the later writing.

The trial court committed no er

er of error.

Furthermore, the proponents of the will introduced similar evidence on their own behalf after the foregoing testimony of Mr. Burke had been given, and, if the ruling of the trial court as to Evidence—waiv- Mr. Burke was error, it was waived. New York L. Ins. Co. v. Taliaferro, 95 Va. 522, 28 S. E. 879; Moore Lumber Corp. v. Walker, 110 Va. 775, 67 S. E. 374, 19 Ann. Cas. 314; Snarr v. Com. 131 Va. 814, 109 S. E. 590.

The proponents offered two bankers as witnesses to give their opinion upon the handwriting of the will and the signature thereto. They had experience of twenty-five and twenty-seven years, respectively, and had experience in passing upon signatures to writings. Each of them testified that in his opinion the will was in the handwriting of Lewis M. Adams. Certain questions were asked one or the other of them, and they were allowed to answer them over the objection of the proponents that the witnesses were

not full experts and such questions to them were improper.

The questions and answers were as follows:

George E. Warfield, Witness.

Q. Will you look at that word "Adams" on the photograph and tell me whether they are in the same handwriting or not?

A. I could not say.

Q. Turning to exhibit No. 12 in the album, I will ask you to look at the three writings containing the "Va." and part of the word "Alex." and tell you that the top one is a photograph from the will and the second one is a photograph from the writing of Charles and the third is a photograph from the writing of Lewis. Which do you think looks more like the top photograph?

A. I don't know what I think about it. I haven't anything to do with it.

Q. In your opinion, which of the two bottom pictures looks more like the top-the second or the third one?

A. The third one looks more like the top.

Carroll Pierce, Witness.

Q. I want to know which writing most resembles the writing on the will, the one marked "S. J. A. exhibit 6," written by Lewis, or the one marked "S. J. A. exhibit No. 1," which you hold in your hand right now?

The witness: I cannot answer the question, because there is such a difference in the time when these things were written. That was written in 1900, before I ever saw Mr. Adams's handwriting at all, and this was written eighteen years later (showing).

Q. I hand you a photograph of the writing of the word "Adams," and ask you if you can say, comparing that with the will, whether in your opinion those are the genuine signatures of Lewis Adams, or any of them?

A. I cannot express an opinion on that. I am no expert in handwriting.

Q. I hand you another photograph, and ask you if you can tell which in there are genuine signatures of Lewis Adams and which are not?

A. I cannot express an opinion on that.

Q. Would you say that any of them were the genuine signatures of Lewis M. Adams?

A. I would not undertake to say.

Q. Would you say that they are not the genuine signatures of Lewis M. Adams?

A. Mr. Smith, I am not an expert on handwriting.

Q. When I tell you that two of these signatures are the same as the word "Adams" in the will, would that change your opinion in any way?

permissible to cross-examine them as to their experi- -what crossence and competen- examination cy, as to their may include. methods of investigation, and to the reasons for the opinions they express, as to the peculiarities of the questioned writing and the difference, in this respect, between it and the genuine writing, as to the differences between his opinion and that of other experts who have testified in the case, and other subjects that will throw light upon weight to be given to his testimony. Indeed, the scope and limit of such cross- Appeal-ruling examination

on cross-exami

must nation of handwriting expert.

be left largely to the discretion of the trial court, whose ruling will be rarely disturbed.

In Browning v. Gosnell (1894) 91 Iowa, 448, 59 N. W. 340, there was given to an expert in handwriting several signatures, some of which were genuine and some written by other persons, and the witness was asked to point out the genuine signatures in order to test his knowledge, and this was permitted. The court said: "We think it is proper, when a witness testifies to the genuineness of a handwriting or signature, to test the value of his evidence thoroughly, and for that purpose he may be asked to give his opinion as to the genuineness of signatures which are prepared for that purpose, and in the handwriting of any person. Opinions as to the genuineness of handwriting are, at best, weak and unsatisfactory evidence, and every afforded, on cross-examination, to reasonable opportunity should be test the value of the opinion of the witness, and we know of no better way than was resorted to in this case."

In Hoag v. Wright, 174 N. Y. 36, 63 L.R.A. 163, 66 N. E. 579, spurious signatures were shown to the witness, along with the genuine, in order to test the skill and capacity of the witness. It was there said:

"It tended to cast doubt upon the credibility of the witness and his skill as an expert. It suggested the question whether, if the witness was at fault as to the spurious signatures, he was not at fault as to the signatures in question. It made a direct attack upon the value of his opinion. . . Owing to the dangerous nature of expert evidence and the necessity of testing it in the most thorough manner in order to prevent injustice, we are disposed to go farther and to hold that where a witness makes a mistake in his effort to distinguish spurious from genuine signatures, and he does not acknowledge his error, it may be shown by other testimony. The test sought to be applied in this case was one of the most practical and conclusive that can be employed to determine whether the witness is really an expert or not. It bears not only upon his competency to express an opinion, but upon the value of his opinion when expressed.

The good sense of the trial judge will confine it within proper bounds and prevent an unnecessary consumption of time. It is better to take a little time to see whether the opinion of the witness is worth anything, rather than to hazard hazard life, liberty, or property upon an opinion that is worth nothing. The evils and injustice arising from the use and abuse of opinion evidence. in relation to handwriting are so grave, that we feel compelled to depart from our own precedents to some extent and to establish further safeguards for the protection of the public. As the hostility of witnesses to a party may be shown as an independent fact, although it protracts the trial by introducing a new issue, so, as we think, the incompetency of a professed expert may be shown in the same way and for the same reason; that is, because it demonstrates that, testimony, otherwise persuasive, cannot be relied upon."

It is well settled that if it is in

foundation.

tended to impeach a witness by a prior inconsistent statement, the foundation should be laid by first calling the atten- Witness-imtion of the witness peachmentto the alleged inconsistent statement and inquiring whether he made it. Gordon v. Funkhouser, 100 Va. 677, 42 S. E. 677. It is claimed by the proponents that this rule was violated in the instant case. We cannot go into the details, but it sufficiently appears that the questions and answers given on a former trial were in nearly every instance read to the witness, and he was asked whether or not he had so testified.

In one instance the question assumed this form:

Q. At the last trial you said you talked with him two days before he died, about making a will. At this trial you say that is not so. Which is correct?

opinions far better than he could

-testimony from photographs.

by the use of the original papers only. There was no error in the ruling of the trial court in this respect.

The ruling of the trial court which has met with the most earnest opposition of counsel for the proponents is that admitting in evidence exhibits A. S. O. No. 2 and A. S. O. No. 1.

A. S. O. No. 2 is an enlarged photograph of the word "Adams," a part of the signature. There are eight of them in the picture. We have hereinbefore stated the objection to the use of this photograph with nonexpert witnesses on crossexamination. The primary object of the photograph was to enable the contestants' expert witness to point out more plainly its peculiarities,-the formation of the letters, the spacing, the angularity, the infirmative line or hesitation, and other peculiarities,-and to compare the writings of Charles M. Adams with those of Lewis M. Adams, in these respects. The photograph having been shown to be a correct picture of the word "Adams" in the genu ine handwriting of admissibility. one of the parties,

Evidencephotographs of signatures

its admission in evidence was proper. Johnson v. Com. 102 Va. 927, 46 S. E. 789, supra. The right to cross-examine adverse expert witnesses to ascertain the extent and accuracy of their knowledge as experts was legitimate on the principles already discussed. See also Hoag v. Wright, supra. The chief objection was to the cross-examination of bank officers who were said to be only quasi experts, and not expected to be observant of such peculiarities as they were asked about. But they were introduced as experts by the proponents of the will, and, with no previous knowledge of the handwriting of Lewis M. Adams, were asked, upon a comparison of the genuine signature of Lewis M. with his name signed to the will, to give an opinion as to

whether or not the signature to the will was the genuine signature of Lewis M. Adams. Under such circumstances, the contestants had the right to test the value and accuracy of that opinion, and the mode adopted was legitimate. The answer that they could not tell in whose handwriting the word "Adams" was simply demonstrated the limit of their knowledge on the subject. They were what may be called practical experts, and the relative weight to be attached to their testimony and that of the scientific

Trial-question for jury-what weight to be

given expert ex- testimony.

perts was a ques

tion for the jury, but the contestants had the right to put before the jury evidence tending to show the limited extent of their knowledge of the handwriting, and the consequent value of their opinions.

Exhibit A. S. O. No. 1 consisted of a book of photographs of writings of Charles M. Adams and Lewis M. Adams, admitted or proved to be genuine, and many of them already in the cause. It contains twelve or fifteen pages. Some of the pictures are enlarged, others are of natural size. Some of the originals were written with pen and ink, others with a pencil. In some of the photographs a word from one writing, a sentence from another, and a part of a sentence from another, are grouped together in juxtaposition and photographed. The originals of all writings of which the whole or any part was photographed were before the court and jury for inspection. The photographs were shown to be correct copies of the originals, and no questions is raised as to this. The photographs were not offered as original evidence, nor as substitutes for original evidence, but "for the purpose of demonstrating the reason for the opinion which Mr. Osborn had expressed." Mr. Osborn was a scientific expert on handwriting introduced by the contestants. The objection to the book of photographs was not because of any use