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giving the viewpoint merely of such expert, and that the jury must form its verdict from all the evidence in the case, and that it is the duty of the jury to look at the original writings and, from them and the other evidence in the case, form its verdict. Evidence experts weight.

23. Opinion evidence as to handwriting is valuable when direct evidence of a reliable and satisfactory character as to the factum cannot be obtained, but it is subject to many abuses and is of a dangerous nature, especially when given by experts in the employ of and paid by parties offering it.

[See 11 R. C. L. 586 et seq.; 2 R. C. L. Supp. 1276; 4 R. C. L. Supp. 712.] Appeal refusal of new trial.

24. Errors in evidence and instructions do not require reversal where there is nothing to indicate that a new trial will result in a different verdict 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

error:

An instruction that statements of Lewis M. Adams as to how he intended to dispose of his property at his death go only to the question of the probability or improbability of his making the disposition of his property set forth in the alleged will, and do not affect the question of whether it is in his genuine handwriting or not, is improper.

Taylor Will Case, 10 Abb. Pr. N. S. 300; Burge v. Hamilton, 72 Ga. 568; Morvant's Succession, 45 La. Ann. 207, 12 So. 349; Hoppe v. Byers, 60 Md. 381; Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393; Lappe v. Gfeller, 211 Pa. 462, 60 Atl. 1049.

A photograph is, at best, only secondary evidence. If admitted for any purpose, the jury should be properly instructed and cautioned as to its probative value.

Scott v. New Orleans, 21 C. C. A. 402, 41 U. S. App. 498, 75 Fed. 373; Whitaker v. Parker, 42 Iowa, 585.

A witness who has seen a testator write, though not an expert, is competent to testify and give his opinion as to the handwriting of the alleged will.

His opinion may or may not have much weight. But he is not competent to compare other writings; that is the province of the expert.

.17 Cyc. 184; Massey v. Farmers' Nat. Bank, 104 Ill. 327; White Sewing Mach. Co. v. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109, 24 N. E. 1053.

The book of photographs prepared by A. S. Osborn, an expert witness for contestants, was inadmissible in evidence.

Johnson v. Com. 102 Va. 930, 46 S. E. 789; United States v. Ortiz, 176 U. S. 422, 44 L. ed. 529, 20 Sup. Ct. Rep. 466; Maclean v. Scripps, 52 Mich. 214, 17 N. W. 815, 18 N. W. 209; Tome v. Parkersburg Branch R. Co. 39 Md. 36, 17 Am. Rep. 540; 9 Enc. Ev. pp. 779, 780; Crane v. Dexter Horton & Co. 5 Wash. 479, 32 Pac. 223; Hynes v. McDermott, 82 N. Y. 51, 37 Am. Rep. 538; Taylor Will Case, 10 Abb. Pr. N. S. 318; Howard v. Illinois Trust & Sav. Bank, 189 Ill. 568, 59 N. E. 1106.

To tell a witness he had testified in a certain way at a former trial, and then proceed on the theory that the witness had so testified at a former trial, is highly improper, and not permissible.

Norfolk & W. R. Co. v. Arrington, 131 Va. 564, 109 S. E. 303; Davis v. Franke, 33 Gratt. 424; 40 Cyc. 2719; Unis v. Charlton, 12 Gratt. 485.

Messrs. Woolls & Bryan and Carlin, Carlin, & Hall, for defendants in er

ror:

The lower court should not comment on or express its opinion as to the weight to be given to any particular evidence.

Bear v. Bear, 131 Va. 447, 109 S. E. 313; Norfolk & W. R. Co. v. Poole, 100 Va. 148, 40 S. E. 627; Burk, Pl. & Pr. 2d ed. § 256.

Witnesses familiar with the handwriting of Charles and Lewis Adams could properly identify genuine examples of the handwriting of both for comparison and examination by the jury.

Nagle v. Schnadt, 239 Ill. 597, 88 N. E. 178.

Witnesses engaged in the banking business and accustomed to examine signatures may competently express an opinion as to the genuineness of handwriting and give reasons for their opinion.

Savage v. Bowen, 103 Va. 544, 49 S. E. 668.

An expert witness on handwriting may competently support his opinion by referring to original and genuine writings, and photographs of them, as compared with the alleged will in controversy.

Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853.

Exhibits prepared by a handwriting expert, consisting of photographs of the alleged will, and of words, parts of words, and parts of genuine signatures, placed in juxtaposition for the purpose of comparison and in explanation of the witness's opinion, were competent and admissible in evidence.

Brown v. Hall, 85 Va. 146, 7 S. E. 182; Hanriot v. Sherwood, 82 Va. 1; United States v. Ortiz, 176 U. S. 430, 44 L. ed. 533, 20 Sup. Ct. Rep. 466; Johnson's Case, 102 Va. 930, 46 S. E. 789; Wigmore, Ev. § 797; State v. Skillman, 76 N. J. L. 464, 70 Atl. 83; State v. Ready, 77 N. J. L. 329, 72 Atl. 445; Wenchell v. Stevens, 30 Pa. Super. Ct. 527; Howard v. Russell, 75 Tex. 174, 12 S. W. 525; Storey v. First Nat. Bank, 24 Ky. L. Rep. 1799, 72 S. W. 319; Luco v. United States, 23 How. 531, 16 L. ed. 545.

Burks, J., delivered the opinion of the court:

This is a contest over a will of which the following is a copy: "Alex., Va., September 10th, 1920. "My Last Will.

"I give all my real estate and cash in bank to my brother, Charles M. Adams.

"I request no inventory and no bond.

"L. M. Adams."

This paper was admitted to probate by the clerk of the circuit court in vacation, upon proof by two witnesses that it was wholly in the handwriting of the testator. On appeal, all persons interested in the probate of said will were summoned, and a trial de novo was had before a jury, which found that the paper called a will was not the true last will and testament of Lewis M. Adams.

There were four brothers in the family, Ephraim, Charles M., Lewis M., and Frank. The first two mentioned are still living. Frank died a few years before Lewis M., leaving surviving him his widow and two daughters, who are the defendants in error. Frank had owned a small grocery store in Alexandria, which, by his will, he left to his brother, Lewis M.; but it is said. that it was not worth as much as he owed Lewis M. at the time. Charles M. and Lewis M. never married, and the latter had lived nearly all his life with Charles M., without any charge for board, and the most intimate and devoted relations existed between them, Charles M. frequently assisted in conducting the store and at times ran it alone. He did a large part of the bookkeeping, and made practically all of the deposits in bank, and signed the checks in the name of Lewis, by which the money was drawn out of the bank. He signed the name of Lewis to other papers whenever it was necessary to have the signature of Lewis. In one instance he signed and acknowledged

(— Va. —, 122 S. E. 126.)

a deed in the name of Lewis. This method of doing business was known to and approved by Lewis. At the time of the death of Frank he was living separate and apart from his wife, and a suit for divorce by her was pending, but Lewis still maintained friendly relations with her. There is evidence on behalf of the defendants in error to the effect that Lewis M. was fond of Frank's children, and they of him, and that he had said he intended to leave his property to Frank's son, and, after his death, he intended to leave it to the defendants in error.

It is claimed by the children of Frank, who are the defendants in error, that the whole will, including the signature, is in the handwriting of Charles M. Adams, the sole beneficiary therein, and is a forgery. They first introduced testimony to show that Lewis M. had declared his purpose to leave his property to them, but, after Charles M. had introduced evidence of an intention

to leave the property to him, they asked leave to have all evidence of declarations of the testator stricken out, but the court declined to do So. The contestants also introduced evidence that, after the death of Lewis M. and before his burial, Charles M. had a conversation with an aunt of the contestants, which was heard, in whole or in part, by several other witnesses, in which Charles M. stated that Lewis M. left no will, and that he had sat up late with Lewis two nights before he died, urging him to make a will, but that he declined to do so unless and until he could get Judge Norton to draw it for him. The will is dated September 10, 1920, and Lewis M. died November 21, 1920.

There were two trials of the case in the circuit court, and Charles M. testified at both. He denied having made the statements attributed to him, but his testimony at the two trials is not altogether consistent. Each side offered both expert and nonexpert testimony. There was a motion to set aside the verdict as contrary to the law and the evi

dence; but it is conceded that there was abundant evidence to support the verdict, and that the verdict cannot be set aside unless some error was committed in the rulings on the evidence, or on the instructions.

Objection was made and exception taken to the action of the court in permitting counsel for the contestants to ask a nonexpert witness of the proponents, on cross-examination, the following questions:

Q. I hand you this paper about the same size, and I ask you, in your opinion, whose handwriting that is (handing witness document)?

tion: The paper which I hand you, Q. I just want to ask this ques

of course, if your Honor does not think this is proper,-marked "H. G. exhibit 2,"-would you say that handwriting on the will, in your is in the same handwriting as the opinion?

Immediately after the last question, counsel for the contestants asked, and the witness answered, as follows:

Q. Let me give you the will for the purpose of comparison (handing witness will).

A. It is not as well written as the will. It is somewhat different.

No answer was given to the first question, and the answer of the second was equivocal. The plaintiffs in error have failed to show in what way, if any, they were prejudiced by the question. If there was error, it was harmless.

The proponents of the will offered to prove that the will was wholly in the handwriting of the testator, by a nonexpert witness who had seen the testator take down orders in pencil in his store, and had seen him write in his books at the store, also in pencil, but who had never seen him make his signature. When asked to give his opinion "as to whose handwriting that paper is, both the paper itself and the signature," he replied, "I would take it to be L. M. Adams's."

On cross-examination, the wit

ness was shown a book of accounts of Lewis M. Adams, and was asked to look at page 262 and say whether that page, or any part of it, was in the handwriting of Lewis M. Ad

ams.

Objection was made on the ground that a nonexpert witness could not be asked such a question, but the objection was overruled, and the witness answered, "Basing my opinion on the bills that I got from Mr. Adams, I would say it was." Thereupon Charles M. Adams, the beneficiary in the will, was put upon the stand by the contestants, and testified that page 262 was wholly in his handwriting.

The witness was recalled and was asked the following question, and answered the same as indicated, over the objection of the proponents:

Q. Mr. Jones, you have heard Mr. Charles M. Adams take the witness stand and state that page 262, which you were of opinion was in the handwriting of Lewis M. Adams, was in the handwriting of Charles M. Adams. Does that change your opinion as to whose handwriting is contained on the will and whose signature is on the will?

A. I do not think it does, Mr. Smith.

The handwriting of Charles M. Adams was very similar to that of his brother Lewis M. Adams, and all the writings introduced were the genuine writings of one or the oth

er.

As the witness had testified that the whole will, including the signature, was in the handwriting of Lewis M. Adams, it was important to determine whether his knowledge of the knowledge of writing of Lewis

Evidence

handwriting.

M. was such as to enable him to distinguish it from that of Charles M. It was legitimate to ask him on cross-examination the question propounded as to the entries on page 262.

Whatever may be the law elsewhere, it is well settled in this state

-comparison

that comparisons of handwriting may be made with any writing proved with other or admitted to be writing. genuine, whether already in the cause or not. Hanriot v. Sherwood, 82 Va. 1; Johnson v. Com. 102 Va. 927, 46 S. E. 789; Keister v. Philips, 124 Va. 585, 98 S. E. 674, overruling Rowt v. Kile, 1 Leigh, 216, and Burress v. Com. 27 Gratt. 934.

-cross-examina

pert witness.

The line of permissible cross-examination of the nonexpert witness is not altogether as extensive as that of the expert, but the same principle is involved, and the trial court must exercise its discretion as to how far it may be carried. Mere abstract questions or questions involving scientific knowledge, as a general rule, would not be permissible, but questions involving the extent of his knowledge or observation, or his fairness, or his tion of nonexbias or prejudice, are permissibile. Where, as here, two persons write much alike, and it is claimed that one had forged the writing of the other, and the genuine writings of both are before the court, a nonexpert witness who has given his opinion that the alleged forged writing is genuine may be asked, on cross-examination, to look at one of the gen--opinion as to uine writings and genuine writsay whether it is in the handwriting of one or the other. This is not an unfair test of his knowledge and observation. 11 R. C. L. 645, 646, and cases cited.

ing.

The nonexpert witness Jones, who had testified that the will and the signature thereto were, in his opinion, in the handwriting of Lewis M. Adams, was asked certain questions and was permitted to answer the same over the objection and exception of the proponents.

The questions were:

Q. Mr. Jones, I am going to hand you a photograph containing eight pictures of the handwriting of the word "Adams," and I am going to ask you whether they are in the

(— Va. —, 122 S. E. 126.)

handwriting of Lewis M. Adams, as you recollect from what you saw?

are

Q. In whose whose handwriting those words, "Adams," on that photograph? Are they in the handwriting of Lewis M. Adams?

Q. Are any of them in the handwriting of Lewis M. Adams?

Q. Are any of them in the handwriting of Charles M. Adams?

Q. Are any of them in the same handwriting as the "Adams" in the will?

Q. Do you think that all of those on that paper are in the same handwriting?

To all of these questions the witness answered that he did not know and could not say whose signatures they were. The character of the photograph mentioned is best described by Mr. Osborn, the contestants' expert, who took it. On this subject he testified as follows: "This shows eight signatures photographed directly from the original and enlarged as they here appear, directly on the plate. There are six signatures of Charles M. Adams and the two Adamses from the will. This degree of enlargement shows certain details which it is more difficult to see in the smaller size. For example, a detail that I did not call attention to is the angle that appears at the base of numerous letters in Charles M. Adams's writing. For example, we have three examples in the three lower ones, the finishing part of the small letter 'a.' The last line is 'Adams' from the will, and the fourth one from the top is the 'Adams' from the will; one Charles M. Adams and the other L. M. Adams. That shows the detail in angularity which occurs frequently in the handwriting of Charles M. Adams and which occurs throughout the will. There is a tendency towards a sharp angle at the base of the letter which is not characteristic of the handwriting of L. M. Adams and is characteristic of the handwriting of Charles M. Adams. Also the infirmative line, or the hesitation that I have already described,

which appears in numerous of these. signatures. It will be seen that there are certain of them that are written with more freedom and force; better control; others that are more hesitating. The two will signatures and the handwriting on the will itself is of a hesitating quality which appears frequently in the handwriting of Charles M. Adams, and is here illustrated. It also shows these small 'd's' especially that I have called attention to in a larger form; the small 'd' with the peculiar curve in the middle part of the letter. The portion up toward the middle part of the old that appears in one of the capital letter A's.' That is the same form as the beginning part of the 'd.' You will notice that the fourth one from the bottom has that same particular curvature in the capital letter itself, which is occasionally characteristic of this handwriting."

It will be observed that it is not a photograph of any signature at all, but simply of the word "Adams;" that it is enlarged; that the "degree of enlargement shows certain details which it is more difficult to see in the smaller size;" that it "shows the detail in angularity which occurs frequently in the handwriting of Charles M. Adams. and which occurs throughout the will." That it shows the infirmative line, or the "hesitation," spoken of by the expert, and shows other features that would be of value to the expert, but unobservable by the This photograph is nonexpert. filed with the record, and it is said the numbers 4 and 8 were taken from the will. The enlargement shows a marked difference in the detailed appearance of the enlarged name. We are of opinion that this was an unfair and improper use of the photograph with the nonexpert witness. It had not been introduced as evidence at that time, no explanation of any kind had been given it, it had not been shown to be an enlargement of the word "Adams" written by anyone connected with the case, nor that the

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