Green v. Terwilliger

• Decision Date: 29 August 1892
• Citation: 56 F. 384
• Parties: GREEN et al. v. TERWILLIGER et al.
• Court: U.S. District Court — District of Oregon

56 F. 384

GREEN et al. v. TERWILLIGER et al.

United States Circuit Court, D. Oregon.

August 29, 1892

Syllabus by the Judge.

In 1848 Mrs. Philinda Green, then a widow, was married to James Terwilliger, a widower. In 1850 they took up a donation claim, containing 630 acres of land, then outside, but now within, the city limits of Portland, Or., the east half of which was designated in the patent as the property of the wife. At the time of the marriage, Mrs. Green had two sons named William O. and Calvin. By her second marriage she had two daughters, one of whom died. The other, Julia Viola, was named in the will as sole heir. At the time of her marriage to James Terwilliger she was unable to write, and her husband thereafter taught her how to write her own name. A deed (X) bearing date September 2, 1872, was offered in evidence purporting to be a deed from Philinda Terwilliger and James Terwilliger, of the east half of the donation claim, to the daughter, Julia Viola Terwilliger. A will bearing date August 14, 1873, was offered in evidence, purporting to be the will of Philinda Terwilliger, bequeathing to her daughter, Julia Viola Terwilliger, the east half of the donation claim, and to her son William O. Green a clock which she had brought across the plains. On August 14, 1873, the date of the execution of the will, her son Calvin Green was murdered at Eureka, Nev., but the fact of his murder was not known until a week thereafter. Philinda Terwilliger died October 19 1873. This suit was commenced by complainants, the widow and heirs of William O. Green, deceased, in March, 1889, to obtain a decree for the discovery, production, and cancellation of the deed and the will, and to have the same set aside as false, forged, and fraudulent instruments; and about one month thereafter the will was proven up, and admitted to probate, in the county court of Multnomah county Or. The contention on the part of the complainants is that the deed and will are forged instruments, and on the part of the defendants that the deed and will are genuine and valid. (For further facts, see opinion.) Decree rendered in favor of complainants.

A demurrer was interposed to complainants' bill upon the ground that the court had no jurisdiction of this suit. This demurrer was overruled. An answer was then filed, denying that the deed or will were false or forged, and alleging that both instruments were genuine. Upon the trial the defendants, for the first time, contended that the complainants' claim, as made in the bill, was stale. Held that, if the bill was defective, in not clearly stating at what particular time complainants were informed of the existence of the disputed documents, objections thereto upon that ground should have been earlier made, by demurrer or otherwise, and that under the pleadings, and upon all the facts and circumstances of this case, the defendants were not in a position to make this claim.

Where testimony is admissible as to comparison of handwriting, care should be taken that the standard of comparison is genuine. The testimony of experts should be confined to a comparison of the disputed signatures with the admitted or clearly-proven genuine signatures.

Under the laws of Oregon, (1 Hill's Ann. Laws, § 765,) and section 858 of the Revised Statutes of the United States, the testimony of expert witnesses, by comparison of handwriting, is clearly admissible.

Where the documents upon which the comparison of the handwriting is made are properly in evidence in the cause for another purpose, the handwriting of the signatures to the different instruments may always be compared by the expert witnesses and by the court, and the fact of such signatures being genuine or false may be determined from such comparison, weighed in connection with the other testimony in the case.

In many cases it is more satisfactory to allow a witness to compare the writing in issue with other writings, of unquestioned authority as to genuineness, than it is to compare it with the standard which he may have formed or retained in his mind from a knowledge of the party's handwriting.

Expert testimony is admissible, and often necessary, in cases of this character, in order to bring out the essential traits and characteristics of a person's handwriting, which might not otherwise be noticed by the untrained eye of the judge or jurors. But in all cases the court, if the case is tried without a jury, must be the final and impartial arbiter to determine the credibility and weight of this kind and character of testimony, by the guiding lights of precedent, experience, and conscience, with due regard to the rules and presumptions of the law, the character of the witnesses, and the property rights of individuals.

The weight and value of positive testimony of a party's handwriting depends upon the frequency with which the witnesses have had occasion to carefully observe the handwriting, and how recent their opportunities of noticing the handwriting have been, and whether or not the witnesses have any interest in establishing the genuineness of the signatures in dispute.

Independent of the testimony of experts, and comparisons of handwriting, the opinion reviews at length the testimony of witnesses as to the reasons given why Philinda Terwilliger should have selected her daughter, Julia, as her sole beneficiary; the testimony of Waterman, that he drew the will, and was aware of the law of Oregon requiring that the children must be mentioned in the will in order to prevent them from inheriting their share of the estate; the fact that the son William O. was named in the will, and the son Calvin not mentioned; the delay in discovering the will, and in probating it; the fact that the daughter, Julia, was first informed as to the existence of the will seven years after its date, and that neither the deed nor the will were delivered to her until after the commencement of the suit; and other facts. Held, that such facts tended to cast a doubt as to the truth of some of the testimony offered upon the part of the defendants, and to raise a suspicion as to the genuineness of Philinda Terwilliger's signature to the deed and to the will, and tended to show that it was unreasonable, unnatural, and improbable that Calvin Green's name should have been omitted from any will which his mother might have made on the 14th of August, 1873, and that, in the light of all these circumstances, the court could not say that the genuineness of the documents was established by positive testimony, which was entitled to the greatest weight, when compared with all the other testimony in the case.

Held, after review of all the testimony, that, from every standpoint from which the examination of the evidence was considered, the mind of the court was irresistibly led to the conclusion that the signatures of Philinda Terwilliger to the deed and will were never signed by her, and that both the signatures were false and forged.

Bill by Clarinda Green (now Clarinda Smith) and Hugh R. Smith, her husband; Anna B. Green (now Anna B. Barnett) and William H. Barnett, her husband; Philinda Green; Mary F. Green, (mother;) and Mary O. Green, a minor, by her next friend, her mother,--against James Terwilliger, T. M. Richardson, Frank Richardson, a minor, and Harry Richardson, a minor, (heirs of Julia V. Richardson, deceased since the commencement of this suit,) to cancel a deed and will. Decree for complainants.

E. W. Bingham and L. L. McArthur, for plaintiffs.

C. B. Bellinger, R. Williams, and P. R. Deady, for defendants.

HAWLEY District Judge.

This is a suit in equity to obtain a decree for the discovery production, and cancellation of a certain deed and will purporting to have been made by Mrs. Philinda Terwilliger, and to enjoin the defendant James Terwilliger, her husband, from selling or disposing of any of the property described in the bill, beyond the term of his estate therein as tenant by the curtesy. The bill, after stating that James Terwilliger and Philinda Terwilliger became the owners of 630.34 acres of land in Multnomah county, Or., under the donation law; that the east half of said land was designated by the surveyor general to be held by said Philinda Terwilliger in her own right; that said Philinda Terwilliger, while still seised of about 150 acres of the east half of said claim, of the value of about $25,000 at the time of her death, died intestate, leaving her son, William O. Green, by her first husband, and her daughter, Mrs. Julia V. Richardson, by her second husband, her sole heirs, succeeding to the inheritance of all her real property, subject only to the estate by the curtesy therein of her husband; that complainants are the heirs, and have succeeded to the interest, of W. O. Green,--states, among other things, that the defendants 'have informed your orators that said Philinda Terwilliger had willed all of her said property to her said daughter, Julia, to the entire exclusion of your orators, and that the defendants had the will in their possession; and at other times defendants have stated that said Philinda Terwilliger had deeded said real property to said Julia, and that said James Terwilliger had the deed. Your orators are informed and believe, and allege, that the defendants have such a pretended will or pretended deed in their possession, or under their control; but your orators allege and charge that any will and any deed which the defendants have, or either of them has, or under which the defendants claim, or either of them claims, which purports to divest your orators of any right or interest which they have, as aforesaid, in the said estate of Philinda Terwilliger, as heirs at law, is a false, forged, and fraudulent instrument.' The word 'forged' was not in ...