Cox v. Tucker

• Decision Date: 22 October 1923
• Docket Number: 23518
• Citation: 97 So. 721,133 Miss. 378
• Court: Mississippi Supreme Court
• Parties: COX et al. v. TUCKER et al

97 So. 721

133 Miss. 378

COX et al. v. TUCKER et al

No. 23518

Supreme Court of Mississippi

October 22, 1923

Division A

Suggestion of Error Overruled Nov. 19, 1923.

APPEAL from chancery court of Lowndes county, HON. T. P. GUYTON Chancellor.

Suit by Mrs. Willie Cox Tucker and others against J. S. Cox Jr., and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Affirmed.

William Baldwin and Lincoln & Lincoln, for appellants.

On the 6th day of July, 1920, Mrs. M. E. Ostrander, an old lady resident of Lowndes county, Mississippi, died at her home in said county. After her death there was found in a metal box in the closet of her bedroom, among her receipts and other papers, an envelope upon which was written the words "My Will." In this envelope in that metal box was found a written paper, the paper being monogram paper of the old lady's, with a large letter "O" engraved upon it. That paper read thus: (The original is on file with the record in this court.)

"Columbus Miss.

Nov. 11, 1918.

To the Judge:

I write this to let you know how I want my property divided. I want my brother my administrator without any bond. I want him to have a nice monmt on my square.

I want my grand daughter to have my farm the furniture in my sitting room, dining room kitchen and her bed room, and one half my money.

I want my brother to have my store house my cottage the furniture in my room and Parlor and other half of my money.

MRS. M. E. OSTRANDER."

A few days after death, to-wit: July 9, 1920, this will was presented to John J. Richards, chancery clerk of Lowndes county, Miss., for probate. The chancery clerk as he considered it, admitted the will to probate and appointed the brother, D. S. Cox, to be the executor and issued letters testamentary to the brother upon the estate. This on July 9, 1920.

The brother, D. S. Cox, proceeded with the administration of the estate under the will, with no objection nor question ever raised so far as appears from the record, or any other source, by anyone as to this will being the will of the old lady. The days, months, a year and a half passed by, no one ever questioning the will, and the brother, executor of the will and one of the beneficiaries, died in January, 1921, and still no one questioned the will.

Again the days and months went on and the two years allowed by law for the contest of wills being about to expire, when in May, 1922, certain of the kin of the old lady, not one of whom lived in Lowndes county, Miss., where the old lady lived and died and where the facts were known, filed their bill in chancery court of Lowndes county, Miss., denying that the will probated was the will of the deceased old lady, Mrs. Ostrander.

The case came to trial. The contestants, appellees, introduced no testimony tending to prove the incapacity of Mrs. Ostrander to make a will, their only witnesses were to the effect that the old lady believed that the dead would live again and come back to the earth. Contestants introduced witnesses who never knew Mrs. Ostrander, nor ever saw her writing and knew nothing of her handwriting. These witnesses, comparing the signature to the will to certain signatures to checks and other papers of the old lady, gave it as their opinion that there was some difference in the signatures.

Upon this testimony the jury, for some reason known only to themselves, brought in a verdict against the will.

There are submitted two propositions, either of which settles conclusively that this verdict is an intolerable wrong to the living and the dead, and should not be permitted to stand. 1st: That this verdict is directly in the teeth of testimony that established beyond doubt that this is the will of the dead woman, Mrs. M. E. Ostrander; 2nd: That the only testimony upon which the verdict could possibly rest is utterly unable to support the verdict and that it should be promptly set aside.

The authorities seem to recognize that in testing the genuineness of a disputed writing more reliance should be placed on similitude or dissimilitude as to general characteristics than as to the formation of particular letters. Thus in Doe v. Suckermore, 5 Ad. and El. 703, 31 E. C. C. 406, COLERIDGE, J., said: "The test of genuineness ought to be the resemblance, not to the formation of the letters in some other specimen or specimens, but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit, or other permanent cause, and is therefore itself permanent."

In determining the issue of the genuineness of handwriting it has been said that evidence of dissimilarities is not equally cogent and weighty with evidence of similarities--Constable v. Steible, 1 Hag. Ecc. (Eng.) 56.

The witnesses who judge of the turn of the letters, differ from each other. Messrs. Ross and Wiles find the difference in the letter "G," Mr. Wright in the form of the letter "S." In Risley v. Indianapolis, etc., R. Co., 7 Biss. 408, 20 Fed. Cas. No. 11, 859, the court said: "We know that men, even good scribes, do not always sign their names exactly the same way. Dissimilitude may be occasioned by a variety of circumstances, by the state of health and spirits of the writer, by the materials, by his position, and by his hurry or care."

Dissimilarities in particular letters seem to be highly probable; "for the slightest peculiarities of circumstance or position" said Sir JOHN NICHOLL, in Robson v. Rocke, 2 Add. Ecc. (Eng.) 53, "as, for instance, the writer sitting up or reclining, or the paper being placed upon a harder or softer substance, or on a plane more or less inclined--nay, the materials, as pen, ink, etc., being different at different times--are amply sufficient to account for the same letters being made variously at the different times by the same individual.

As to the testimony of the witnesses as to variations in the handwriting of the signature to the will and signatures to certain checks and other writings of the old lady Ostrander: This matter of letting witnesses testify as to comparison of handwriting who had no personal knowledge or familiarity with the writing and give their opinion thereon, is as old as the law and we have the experience and ideas and learning of centuries of judges and law writers thereon.

In the American courts such testimony is generally admitted under statutes confining it to certain conditions. We have no statute in Mississippi, but the law is uniform and without a dissent that it is the weakest of all testimony and just as apt to mislead as to help and should be received with great caution.

Propriety of Comparison. The most satisfactory proof of handwriting, where the party alleged to have executed the instrument is unavailable, is said to be the testimony of a witness who saw the instrument executed and is able to identify it. The next best testimony is thought to be that of witnesses who have seen the party whose writing is in controversy write, or have had access to or possession of his writings, so as to impress the character of the writings upon the mind.

This court has twice made its clear warning as to this sort of...