Hawkins v. Grimes

• Decision Date: 05 October 1852
• Citation: 52 Ky. 257
• Parties: Hawkins <I>vs.</I> Grimes.
• Court: Kentucky Court of Appeals

52 Ky. 257

Hawkinsvs.

Grimes.

Court of Appeals of Kentucky.

October 5, 1852.

APPEAL FROM MADISON CIRCUIT.

Judge MARSHALL delivered the opinion of the court.

A paper purporting to be the will of Charles S. Hawkins, and bearing date the 2d of July, 1840, having, in August, 1848, been admitted to probate in the Madison county court, as a will wholly written and signed by the testator, this bill was filed in the Madison circuit court, by several of the heirs against the devisees of C. S. Hawkins, to contest the validity of said paper as a will.

The issues arising upon the pleadings and evidence, are — First, whether the paper in question, to which there is no attesting witness, was wholly written and signed by the decedent himself; and second, whether, if the paper was wholly written by him, he was of sound and disposing mind and memory at the time of writing and signing it. And each of these issues arises particularly in reference to certain important words and figures alleged to have been inserted in the paper, by erasing or obliterating the words first written, and inserting other words and figures in their place. There is evidence conducing to prove that this was, in fact, the case. And the particular questions arising on this branch of the case are — first, whether the words and figures now referred to, or any of them, were, in fact, interpolated after and in the place of other words first written; second, whether they were written wholly by the supposed testator; and third, whether, if so written, he was at the time of writing them of sound and disposing memory.

The original paper which has been brought up with the record presents intrinsic evidence of its having been altered after the first writing, in the particulars referred to; but there is no direct evidence as to the time when the alteration was made, and but little ground for inference. No witness ever saw the paper until after the death of C. S. Hawkins, when it was exhibited by C. A. Hawkins, the principal devisee, at whose house the alleged testator died, and who stated that he had found it in the pocket or pocketbook of the decedent after his death.

Upon the evidence there is no serious question that the paper was signed and written by C. S. Hawkins, except with regard to the alleged interpolations, as to which the evidence is contradictory, and this court would not be authorized to disturb a verdict either way which had received the sanction of the circuit judge presiding at the trial. Nor does there seem to be any serious question as to the competency of C. S. Hawkins to make a will at the date of the paper in question, and for some years afterwards. But if there be alterations in the writing, not made and written by the testator himself, the whole will must fail; or if written by himself, the will must still fail, unless, when written, he was competent to make a will. — Whether, upon the assumption that the alterations were made by the testator himself, he was then competent, depends upon the question when the alterations were, in fact, made. For not only was there oral evidence that he was insane for some months previous to his death, but the complainants produced in evidence an inquisition of lunacy finding him to have been a lunatic without lucid intervals from a period of about seventeen months prior to his death.

This evidence was objected to, but the admissibility of such inquisitions, and their effect as prima facie evidence, are well established. And although the inquisition was entitled to no effect upon the verdict, unless the jury should believe that the alterations, if any, made in the will were made after the period to which the inquisition refers, its admissibility before the jury did not depend upon the determination of that fact, which they alone could decide, but merely upon its own efficacy to prove the fact which it stated as to the period during which the lunacy had existed. As the inquisition fixed the period at which the lunacy found by it commenced, it was not necessary that the court should, unasked, qualify its admission by telling the jury either that it did not prove the existence of lunacy before the period named, or that it could not affect the validity of any part of the paper offered as a will, unless such part was written after that period. The time at which the alterations, if any, were made not being conclusively fixed by the testimony, and being open for the decision of the jury, the effect of admitting the inquisition without qualification, was not to pre-judge the question as to the time of the alterations, but to leave the jury free to inquire and decide whether the alterations were or were not made within the period to which the evidence of lunacy applied. We perceive no error, therefore, in admitting this evidence or in failing to qualify it.

Upon the question, whether the alleged alterations were written by C. S. Hawkins, three witnesses, Barnes, Moran, and Nolan, professing experience in the examination of writings, but who had no previous knowledge of the handwriting of C. S. Hawkins, undertook to point out discrepancies between the letters, or some of them, in the parts of the writing alleged to have been altered, and the same letters in other parts of it; also to state that from the appearance of the paper and the writing on it, the original writing seemed to have been altered by erasure and insertion. In addition to which they expressed their opinion or belief that the words inserted were not in the same handwriting as the other parts of the paper. This testimony and every part of it was objected to by the defendant as incompetent, but the objection was overruled by the court. The admission of this evidence was made a ground of the motion for a new trial, and is now urged as a ground of reversal.

The general rule with respect to proof of handwriting requires that the witness shall have had personal knowledge of the party's handwriting, either by having seen him write, or by having seen writings purporting to be his and afterwards admitted by him, or with his knowledge and acquiescence acted on as his, or adopted into the ordinary transactions of life as his. (1 Greenleaf's Ev. § 577.) The same author in § 578 states the exceptions to be — First, where the writing is of such antiquity that living witnesses cannot be had, but not so old as to prove itself; in which case other documents either admitted to be genuine or proved to have been treated and acted on as such by all parties, may be produced, and experts may, upon comparison, testify their opinion concerning the genuineness of the writing in question. Second, where other writings admitted to be genuine are already in the case; in which case he says the comparison may be made by the jury without the aid of experts.

In the present case, it is to be observed that the witnesses do not undertake to say that any part of the instrument in question is or is not in the handwriting of the decedent, from a comparison of this instrument or any part of it with other writings, which, under the rule and exceptions above stated, could not be done, except on the ground of antiquity, or where the other writings are admitted and already in the case. But they undertake, first, to speak of facts as they appear to them on the face of one and the same instrument, which instrument the objecting party not only admits but insists is genuine, and, secondly, to express their opinion by comparison of that part of the instrument which is disputed with other parts of the same instrument, that the whole is not in the same handwriting.

There is, as we think, a clear distinction between these two branches of the testimony in question. The entire instrument being before the jury, with the question whether the whole and every part of it was written by C. S. Hawkins, upon which question, as no one saw the instrument written, evidence of handwriting furnished the only means of proof, the jury, besides hearing such evidence as was admissible on that subject, must of necessity have the right to compare the different parts of the writing and the disputed with the undisputed parts, as a means of determining whether it was wholy written by the same person. And this is allowable under the principle of the second exception to the general rule excluding comparison of hands. One element of this comparison consists in the observation of the resemblance or difference which may be found in the formation of the same letters and words in different parts of the instrument. And although a difference in this respect may in itself furnish but slight ground, and sometimes none, for inferring the non-identity of the handwriting, yet it may be resorted to, and with such effect as, under all the evidence, the jury may think it entitled to. But because the jury may make this observation themselves, and are to judge of its weight and effect upon the principal question, it does not follow that they must be unaided in the scrutiny, or that they should only be aided by the evidence of those who have a previous acquaintance with the handwriting of the individual.

Where the discrepancies are glaring, a jury might observe them without aid from others. But such as are more minute and less striking would not, unless pointed out, be noticed by ordinary persons or witnesses while they might be easily discernible by persons experienced in the examination of writings, whether acquainted with the handwriting of the individual or not. The pointing out of such discrepancies in the shape, size, inclination, or shading of particular letters or words in an instrument, or in several instruments, actually before the witness and the jury, does not necessarily imply any opinion as to handwriting, and certainly does not require a previous acquaintance with the handwriting in question. It is rather a statement by the witness of facts or impressions derived from actual inspection of a document or documents...