Hanriot v. Sherwood

• Decision Date: 17 January 1884
• Citation: 82 Va. 1
• Parties: HANRIOT AND ALS. v. SHERWOOD AND ALS.
• Court: Virginia Supreme Court

82 Va. 1

HANRIOT AND ALS. v. SHERWOOD AND ALS.

Supreme Court of Appeals of Virginia.

January 17, 1884

Appeal from decree of circuit court of Norfolk county, rendered 2d April, 1881, in the chancery cause wherein John Hanriot and others, suing as next of kin of Francis Hanriot, deceased against C. S. Sherwood, Peter Dufrane and others, claiming to be the legatees of the deceased.

The object of the suit was to impeach a paper writing propounded by the defendants as the will of the decedent. The jury impaneled to try the issue of devisavit vel non, rendered their verdict in the affirmative. The court ordered the said paper writing to be recorded as the true last will of the decedent.

Exceptions were taken at the trial of the issue, to the exclusion by the court of certain expert testimony offered by the complainants. And they obtained from one of the judges of this court, from the said decree, an appeal and supersedeas.

Opinion states the facts.

Holladay & Gayle, for the appellants.

J F. Crocker and V. O. Cassel, for the appellees.

OPINION

LACY J.

The facts necessary to be stated are as follows: Francis Hanriot, an eccentric and miserly Frenchman, residing in the county of Norfolk, died at a boarding-house in the city of Portsmouth on the 23d day of December, 1880, to which he had been removed by the appellee, Sherwood, on the 20th of the same month. Before his removal he had lived alone, having but little intercourse with his fellow-man, with few associates, if, indeed, he could be said to have any associate, except a fellow-countryman, a pauper in the county poorhouse, which was near by, named Peter Dufrane, who was more or less constant in his attendance upon the said Francis Hanriot, according to the moods of the said Hanriot, who was an old man, feeble in health, and variable in his moods. A few days after the death of the said Francis Hanriot this Peter Dufrane exhibited a paper writing in broken English, which he claimed to have found in the loft of the old man's house, in a box wrapped in an old shirt, and which bestowed the property of Hanriot on the said Peter Dufrane, the appellee, Sherwood, who was also his neighbor, and others, providing that none of the relatives of the testator should ever have any of his property. This will was not witnessed, but purports to be wholly in the handwriting of the testator.

This paper was offered to the county court of Norfolk county for probate on January 28, 1881, and on the 2d of February following, upon the testimony of C. S. Sherwood, the appellee, and Earnest Cackart, also one of the appellees and one of the beneficiaries under the said will, the same was ordered to be recorded as the last will and testament of the said Francis Hanriot, deceased. A suit in equity was then instituted in the circuit court of Norfolk county by the appellant, John Hanriot, residing in New Jersey, and his two nieces, residing in France, who are his next of kin, to impeach the said will.

A jury was impaneled at the March term, 1881, of the said court to determine if the said paper writing was the last will and testament of said Hanriot; and, upon hearing the testimony, which was admitted as proper by the court, rendered their verdict that the said paper writing " is the true last will and testament of Francis Hanriot, deceased."

The testimony in the case is certified to this court; but, upon well settled principles, the verdict of the jury, and the judgment of the court refusing to disturb the same, upon the motion of the appellants, must be held in this court to be final in this case. The rule is well settled, and it has been often decided here, that this court will only consider the evidence introduced by the party prevailing, and will not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court below still appears to be wrong. Read's Case, 22 Gratt. 924; Gimmi v. Cullen, 20 Gratt. 439; Dean's Case, 32 Gratt. 912; Danville Bank v. Waddill's Administrator, 31 Gratt. 469; Daingerfield v. Thompson, 33 Gratt. 136.

In this case there was much conflict of evidence before the jury upon the questions involved in the case. The court has certified the evidence, and not the facts proved; and when this evidence is considered upon the well established rules, which have been uniformly followed by this court in like cases, the verdict of the jury must be regarded as final upon the facts in this case, and the action of the court below, refusing to set aside the verdict of the jury, cannot be reversed here upon the ground that it is contrary to the evidence. But certain exceptions were taken to the rulings of the court in the trial of the issue which are assigned as error here.

First. The appellants presented to C. S. Sherwood, a witness for the propounders, a receipt which the said witness testified he had written and witnessed, and which was signed by Francis Hanriot, deceased; and then was also shown him a letter in French purporting to have been written and signed by said Hanriot, and which the said witness testified was wholly in the handwriting of the said Hanriot; and thereafter the appellants offered to introduce experts for the purpose of having them examine and compare the signatures to said letter and receipt, and say to the jury whether, in their opinion, they were in the same handwriting as the signature to the disputed will; but the court refused to permit such experts to so testify.

Secondly. The propounders of the will having endeavored to show that unfriendly relations existed between said Hanriot and his kindred, the appellants introduced a letter in French, which was proved by the appellee, Sherwood, who was examined as a witness touching the same, and by other witnesses, to be in the handwriting of said Francis Hanriot, deceased, for the purpose of showing the friendly relations of said Hanriot to his family, which letter the court permitted to be introduced for that purpose. And said letter being so introduced for that purpose, and proved to be genuine, the appellants thereafter offered to introduce experts for the purpose of having them examine and compare the signature and body of said letter with the paper writing in dispute, with the view of eliciting their opinion, to the jury, as to whether the said letter and the said writing in dispute were in the same handwriting; but the court refused to permit said experts to be examined for the purposes aforesaid.

Thirdly. A deed was introduced, and a witness introduced by appellants testified to having seen the said Francis Hanriot sign the said deed, and to his taking the acknowledgment of the said Hanriot thereto in his capacity as a commissioner in chancery, but that he had no recollection of his signature, and could not recall it without first seeing the signature to the deed, which having seen and compared with the will propounded he was enabled to testify that he did not believe that any portion of the will in dispute, or the signature thereto, was in the handwriting of the said Francis Hanriot.

The deed being thus in the case, the appellants moved the court to allow them to introduce experts for the purpose of having them examine and compare the signature of said deed with the signature of the disputed paper, with the view of eliciting their opinion on the question; but the court refused to permit such experts to testify.

Fourthly. The appellants then moved the court to allow them to introduce in the case certain checks and receipts, purporting to have been signed by said Francis Hanriot, deceased, and to prove the genuineness of such signatures by witnesses who saw him make the same, with the view to introduce thereafter experts for the purpose of having them examine and compare the signatures to such checks and receipts with the paper writing, and the signatures thereto in dispute, with the view of eliciting the opinion of such experts as to whether the paper writing in dispute is in the same handwriting as the signatures to said checks and receipts. When the court held such evidence to be inadmissible.

Upon these rulings of the court below the appellants insist that it was error to refuse to permit the use of expert testimony thus offered to test the genuineness of the disputed will as a paper wholly in the handwriting of the dead man, including the signature thereto, and have ably urged before this court here this assignment of error.

The appellees, on the other hand, insist that this is an attempt on the part of the appellants to bring before this court for consideration questions which the bar and courts of this State have treated as settled for many generations; that it is an effort to bring under review the reasons and policy on which the rules of evidence in this respect are founded, rather than to dispute the rules as established, and that this appeal should have been--as was done in England and in other States of this Union--to the legislature, rather than to the judicial department of the government; that the rules of the common law on this subject have not been altered by any legislative act in this State.

Under the rules of evidence in this State, can expert testimony be employed to test the genuineness of disputed writings, by comparison of writings admitted or proved to be genuine with the alleged forgery? This is the question raised in this cause which it is necessary to decide. The testimony of persons of skill, who, by a course of previous habit and practice, or of study, have become familiar with the subject in hand; who by practice in a business or profession which requires them to possess a certain knowledge of the matter under consideration, has been used in arriving at...