Griffin v. Working Woman's Home Ass'n

• Decision Date: 15 November 1906
• Citation: 151 Ala. 597,44 So. 605
• Parties: GRIFFIN v. WORKING WOMAN'S HOME ASS'N.
• Court: Alabama Supreme Court

44 So. 605

151 Ala. 597

GRIFFIN v. WORKING WOMAN'S HOME ASS'N.

Supreme Court of Alabama

November 15, 1906

On Rehearing, July 2, 1907.

On Rehearing.

Appeal from Probate Court, Montgomery County; J. B. Gaston, Judge.

Petition by R. May Griffin for the probate of an alleged last will and testament of L. K. Boultier, deceased, to which the Working Woman's Home Association of Montgomery, Ala., filed a contest and applied for the probate of a prior will, claiming that the will offered for probate by petitioner was a forgery. From a judgment for contestant, proponent appeals. Affirmed on rehearing.

Dowdell J., dissenting in part.

Various witnesses were examined pro and con, but the testimony objected to and on which the court ruled is sufficiently set out in the opinion of the court. The proponent asked the following charges, which were refused: "(1) The jury may institute a comparison between the signatures to the letters offered in evidence and the signature to the paper dated July 17, 1905, offered for probate, in order to arrive at a conclusion as to the genuineness of the signature to said paper bearing date July 17, 1905. (2) The jury has the right to compare the signatures found on the letters offered in evidence to the signature to the paper offered for probate bearing date July 17, 1905." (3) General affirmative charge to find for proponent. The contestant asked the following charges, which were given: "(1) The jury are not confined in their consideration of the case to what is deposed to by witnesses upon the stand, but have the right and privilege to consider and weight all the facts and circumstances appearing in the case, further arising from what is deposed to by witnesses or from writings introduced in evidence. (2) That the question of how Boultier derived his title to the property has nothing to do with the question whether or not he executed the will propounded for probate." There was judgment for contestant, and proponent appeals.

Hill Hill & Whiting, for appellant.

Gunter & Gunter, for appellee.

DOWDELL J.

This appeal is prosecuted from a decree of the probate court in a proceeding for the probate of a will. There are numerous assignments of error on the record, all of which relate to rulings of the court on the admission and rejection of evidence, except the last five, which relate to given and refused charges. It would prolong this opinion to an undue length, and serve no good purpose, to treat numerous assignments in detail, since the questions raised, relatively speaking, are few, and may be disposed of in a general way by a statement of the rules of evidence and principles of law which we consider applicable.

There is but one issue in the case, and that is whether or not the will propounded for probate was a forgery. The contestant's right of contest was based upon the alleged execution of a prior valid will by the testator, in which the contestant was named as sole devisee and legatee. Under the issue the burden of establishing the genuineness of the proposed will was on the proponent. In the opening of the case and the introduction of evidence, the initiative was with the proponent, and it was her duty to prove the due execution of the will, and this involved the proving of the genuineness of the signature to the will. All relevant evidence tending to this end legitimately belonged to the proponent's original case in the conduct of the trial. On the trial there was no dispute as to the genuineness of the prior will. Its execution was proven, and, besides, it was expressly admitted by the proponent during the trial, and for the purposes of the trial, that the prior will was genuine. It was treated by the parties during the trial as having been introduced in evidence, and at the conclusion of the introduction of evidence it was read to the jury. The prior will, therefore, being in the case by the contestant's pleadings, and admitted, as well as proven, to be genuine under the decisions of this court it was undoubtedly permissible, on the question of forgery of the will propounded for probate, to compare the signature of the prior will with the signature of the will propounded. Moon v Crowder, 72 Ala. 79; Williams v. State, 61 Ala. 39; Kirksey v. Kirksey, 41 Ala. 626; Little v. Beasley, 2 Ala. 703, 36 Am. Dec. 431; 3 Wigmore on Evidence, § 2000, cls. 3, 4.

On the question of the comparison of handwriting, where the genuineness of a writing is in issue, the decisions of the courts are by no means in harmony. In some jurisdictions the question has been the subject of legislation. The question has been frequently under consideration in this court, and from former adjudications here the following rules may be laid down as being well settled: (1) When the forgery of a paper is in issue, and another paper admitted or proven to be genuine is properly in the case and before the court, a comparison may be instituted between the signature of the genuine paper and the signature of the disputed one. The comparison may be made by the jury trying the case, for the purpose of determining the question of forgery vel non of the disputed paper. An expert witness may also make a comparison in such case of the two signatures, and after such comparison express his opinion as to the genuineness of the paper in dispute. (2) A comparison of handwriting may not be instituted between the writing that is in question and extraneous papers, although such extraneous papers may be shown to be genuine. A writing, although admitted to be genuine, when not otherwise relevant and admissible in evidence, is not admissible for the sole purpose of instituting a comparison of handwriting, whether by the jury trying the case or for the expression of an opinion by one examined as an expert witness. (3) A witness who is not an expert may not express an opinion as to the genuineness of a signature solely from a comparison of handwriting; but a witness, though not an expert, may express his opinion as to the genuineness of a signature, where such witness knows the handwriting of the party from having corresponded with him or seen him write. Little v. Beasley, 2 Ala. 703, 36 Am. Dec. 431; State v. Givens, 5 Ala. 747; Bishop v. State, 30 Ala. 34; Kirksey v. Kirksey, 41 Ala. 626; Williams v. State, 61 Ala. 33; Moon v. Crowder, 72 Ala. 79. See, also, in this connection, 17 Cyc. pp. 73, 163.

As to the competency of a witness to testify his opinion as an expert it was said by this court in Moon v. Crowder, supra "To legalize such testimony, the witness must be first shown to be an expert; that is, accustomed to and skilled in the matter...