Hensel v. Smith

• Citation: 136 A. 900,152 Md. 380
• Decision Date: 17 February 1927
• Docket Number: 103.
• Parties: HENSEL ET AL. v. SMITH.
• Court: Court of Appeals of Maryland

136 A. 900

152 Md. 380

HENSEL ET AL. v. SMITH.

No. 103.

Court of Appeals of Maryland

February 17, 1927

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Petition by Elsa Dugent Smith against Elizabeth A. Hensel and another executrices of the last will and testament of G. Edgar Smith deceased. From the rulings, defendants appeal. Rulings affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

H Webster Smith and Charles Ruzicka, both of Baltimore (E. Ridgely Simpson and Smith & Smith, all of Baltimore, on the brief), for appellants.

Lewis W. Lake, of Baltimore, for appellee.

SLOAN J.

On July 18, 1925, a certain G. Edgar Smith died, leaving a will admitted to probate in the orphans' court for Baltimore city, whereby he left his property to his sisters, Elizabeth A. Hensel and Josephine B. Osbourn, and in which they were named as executrices. Subsequently, on March 31, 1926, Elsa Dugent Smith, the appellee, filed a petition in the orphans' court wherein she alleged that she was the widow of the said G. Edgar Smith; that she and the decedent were married at Wilmington, Del., on February 10, 1912, by a duly ordained minister of the gospel, and that, in consequence of the death of the said G. Edgar Smith, she thereupon became his lawful widow. The appellants, on April 14, 1926, filed their answer to said petition, admitting all of the allegations contained therein, except the marriage and widowhood of the appellee. Whereupon an issue was sent to the Baltimore city court to be tried by a jury, as follows: "Was Elsa Dugent Smith the lawful wife of G. Edgar Smith at the time of his death on the 18th day of July, 1925?" and from the answer "Yes" of the jury on this issue the case now comes before us.

It appears from the evidence that, on February 10, 1912, application for a marriage license, in accordance with the laws of Delaware, was made by one George E. Smith to James W. Robertson, a justice of the peace at Wilmington Del., to marry a woman named Elsie G. Dugent. On the same day, February 10, 1912, it appears from a photostatic copy of the marriage records of Trinity Protestant Episcopal Church of Wilmington, Del., that a George Edgar Smith and Elsa Grace Dugent were married by the Reverend Frederick M. Kirkus, rector of the church. From that date, until the day of the death of G. Edgar Smith, if they were the parties married on that day, his marriage to the appellee remained a secret, and the only person testifying in this case pretending to have knowledge of the marriage was the sister of the appellee, Maude E. Dugent. There is no evidence of cohabitation except as testified to by Maude E. Dugent. To the world and to their friends--and they appear to have had many mutual friends--they were as single and unmarried as before the alleged marriage. The appellee resided with her parents until their death, then maintained an apartment of her own. The decedent had his apartment where he was not visited by the appellee or any other woman. It appears that down to the time of the death of the decedent he and the appellee were on the most friendly terms. Their relations were always cordial.

There are 165 exceptions noted in the record in this case, but, fortunately for us, they resolve themselves into a small number of groups. The questions to be decided are of general application, and the law and the facts can be discussed without much detail.

We are not called on to find as a fact that the decedent and the appellee were married as alleged, but to determine:

(1) Whether there was evidence sufficient to go to the jury that G. Edgar Smith was the man who signed the application for a marriage license at Wilmington on February 10, 1912, and the appellee the woman named therein as Elsie G. Dugent.

(2) Whether the marriage license application signed "G. E. Smith" was properly in evidence as the "disputed signature."

(3) Whether the parties to whom the license was issued were the same parties who were on the same day married by the Reverend Mr. Kirkus.

(4) Whether the admissions or statements alleged to have been made to the sister, Maude E. S. Dugent, were admissible.

If the identification of the parties named in the marriage license record depends, as it does to a considerable extent in this case, upon proof of the signature of the applicant, then the questions which arise from the introduction of the evidence tending to show that the decedent was the one who signed the application become an important factor. There was no eyewitness to the application for marriage license except the justice of the peace, Robertson, who testified by deposition, nor any to the marriage, except the Reverend Mr. Kirkus, who also testified by deposition; and neither of them could recognize the appellee nor identify the photograph of the decedent. The blanks in the marriage license application were filled in by a constable named Green, since deceased. Neither of the subscribing witnesses to the church marriage record testified. The only thing, therefore, by which the decedent, George Edgar Smith, can be identified as the party to whom the license was issued is the signature, "G. E. Smith," on the application for marriage license. It was testified by many competent witnesses, who were familiar with his handwriting, that the signature which appeared upon the photostatic copy of the license application was the signature of G. Edgar Smith, the decedent, and, if the photostatic copy, together with the undisputed signatures of the decedent, furnish the proper standard of comparison, there can be no doubt of the admissibility of such evidence.

Section 7 of article 35 of Bagby's Annotated Code provides that:

"Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, or the court, as the case may be, as evidence of the genuineness or otherwise of the writing in dispute."

It is evident from this statutory requirement that the comparison of handwriting should be made with original signatures, and that the use of photostatic copies would not be permissible, unless it were impossible to obtain the originals; and that in such case photostatic copies could only be substituted when shown by competent and qualified witnesses to be exact copies of the originals.

The appellee produced as a witness in the city court of Baltimore Alfred Whartenby, who testified that he was a clerk in the office of the clerk of the peace of Wilmington, Del. Through this witness she offered in evidence what purported to be the original of the marriage license application of George E. Smith to marry Elsie G. Dugent. While Mr. Whartenby was on the stand, the proposition was made by appellee's counsel to offer in evidence a photostatic copy of the original, appellee's counsel saying: "I am going to ask your honor to accept that in evidence so that the original record can be taken back"; counsel then stating, "I will show them both to the jury for comparison," which, according to the record, was done.

The evidence from which there appears to be extraneous proof that the photostatic copy was a correct copy is contained in the deposition taken at Wilmington of J. L. Wright, clerk of the peace for the court of Newcastle county, Del., who testified that "Plaintiff's Exhibit No. 1 is a photostatic copy of an application made for marriage license, and to the best of my knowledge they are the same as the original," and the testimony of James W. Robertson, a justice of the peace of Wilmington, Delaware, who was asked:

"Q. Will you compare the original with the plaintiff's Exhibit No. 2 (deposition), which is a photostat of the original, and state if there is any difference in their size, in their printed or written matter that appears thereon, or their appearance in any particular?"

--to which the witness answered:

"There is a little bit of difference in the size of the paper; it is about a quarter of an inch longer--well, I guess inside of the black margin would be the same, inside of the black margin it is the same."

Samuel C. Malone, a handwriting expert who testified for the appellants that he had made comparisons at Wilmington a month before the trial of certain undisputed signatures of the decedent with the disputed signature on the license application, in answer to the question of the court, "Do you recognize that photostatic copy that you hold in your hand as a copy or picture of the document you saw up in Wilmington?" said, "Yes, sir; absolutely so."

In addition to the oral evidence, the court, having access to both the original signature and the photostat, had a better opportunity to pass upon the evidence of the accuracy of the photostat than is usually afforded where the originals of inaccessible writings or public documents are beyond the jurisdiction of the court. "The admissibility of a photograph in evidence is a question addressed largely to the discretion of the trial court, and its decision will seldom be reviewed by an appellate tribunal." 10 R. C. L. 1154. In this case we assume that the trial judge did not allow the original to be withdrawn until he had satisfied himself of the accuracy of the photostatic copy thereafter used as the disputed writing with which the undisputed signatures were compared.

It is well settled that photographic copies of signatures are secondary evidence, and are only admissible when the originals are not available, but, when they are not available, the use of photographic copies is permissible. Wigmore (2d Ed.) § 2010; 31 A. L. R. 1436; Stitzel v....