Smith v. Young

Citation99 So. 370,134 Miss. 738
Decision Date11 February 1924
Docket Number23543
CourtUnited States State Supreme Court of Mississippi
PartiesSMITH et al. v. YOUNG et al

Division B

Suggestions of Error Overruled March 24, 1924.

APPEAL from chancery court of Clay county, HON. A. J. MCINTYRE Chancellor.

Proceeding between Sanford Smith and others and Sanford Young and others. From the decree rendered, the former appeal. Affirmed.

Decree affirmed

W. W Magruder, Sayles & Sayles, and J. E. Caradine, for appellants.

The alleged will is a typewritten document, consisting of two sheets of paper and a binder or jacket. The first sheet is the alleged will itself, and the second sheet is the attestation clause thereto, signed by Gates T. Ivy, attorney for proponents, and Miss Carrie Hoover Malone, who was at that time his stenographer.

Appellants with regret and sorrow but without hesitation charge that the alleged will is a forgery perpetrated by such attesting witnesses or through their procurement, or to be even more specific through procurement of proponents' attorney who claims to have drafted and dictated the will.

As the eminent experts who testified in this case for appellants indicated in their testimony and in certain communications with the writer of this brief, we have in the instant case a problem as definite and tangible as the identification of a horse or an automobile from marks and scars and bumps and dents. We are not obliged to depend upon the opinion of any expert or other witness except in-so far as those opinions are supported by cogent reasons that appeal to us as men of sense and reason.

More and more the various supreme courts of the various states are coming to look upon testimony relating to a tangible thing like a document not as the basis for a mere opinion, but as a problem that appeals to the intelligence of the observer. In the argument of this case, upon the law and upon the application of the facts herein to the law thereof, we address ourselves to the reason and to the conscience of this court. We make no appeal to passion or to prejudice but we talk to your heads and your hearts.

The supreme court of our neighboring state, Florida, has discussed this question in the recent case of Boyd v Gosser, 82 So. 758, and the gist of that discussion is that testimony of this kind is an appeal not to the credulity of the hearer or observer but to his intelligence. In that case, the supreme court of Florida reversed a jury verdict for the specific reason that expert testimony of this kind was not given its conclusive value. This is the trend of modern authority and precedent on this subject and eventually will be the universal rule because it is a rule based upon common sense and common reason. Forty witnesses may testify that the law of gravity does not control physical matter in this universe and a credulous jury might return a verdict accordingly; but it would not be binding upon an intelligent court. No judge of this tribunal or any other tribunal under such circumstances could afford to stultify himself by saying, "The court is bound by the verdict of the jury in this case on conflicting evidence."

That is not the instant case. There is no conflicting evidence. The testimony of the alleged attesting witnesses and of those other witnesses who undertook to support them is of negligible value. It does not rise to the dignity of evidence. It is demolished and destroyed by physical facts as certain as that God rules and reigns in Heaven. The supreme court of Kansas in Baird v. Shaffer, 168 P. 836, adopts the same view in cases of this nature and the supreme court of Nebraska in O'Conner's Estate, 179 N.W. 401, takes the same position on the side of reason and sense. The supreme court of New York in Venuto v. Lizzo, 130 New York Supplement, 1066, in referring to testimony of this nature says, "that if supported by sufficiently cogent reasons, it may amount to almost a demonstration.''

This is our contention in the instant case, that it does amount to a mathematical demonstration. All that we ask of this court in so far as the facts of this case are concerned is that scrutiny and analysis of the original exhibits, photographs, and other testimony in this case which is so well justified by the importance of the principles involved. Under the magnifying glasses, this court will be able with little difficulty to detect the patching, the pointing, the careful efforts, not at legibility but at simulation that characterize this signature. This court will inevitably be drawn to the same conclusion reached by Expert Witness Wood that this alleged signature is spurious in itself and of itself, entirely independent of comparison with other signatures.

It is claimed by proponents in this case that both pages of this alleged will are the work of a No. 10 Remington typewriter. It is claimed by the contestants that the two pages of the will in controversy are the work of different typewriters, to-wit: that the first page was written on an Underwood typewriter, and that the second page was written on a No. 10 Remington typewriter,--the particular No. 10 Remington typewriter in Mr. Ivy's office. If this latter claim is true, it should not be at all difficult to ascertain and establish it with the utmost certainty; for each of these machines carry certain characters which make its work, beyond all possible question, individual and distinctive.

As conclusively demonstrated in our statement of facts, the alleged will in this case is manifestly spurious for two reasons. 1st: Because H. H. Young did not sign it; 2d: Because the first page here propounded for probate was not written on a Remington typewriter, proponents demanding probate of an instrument so written.

Mr. Osborn in "Questioned Documents," 135-136, explains in lucid language the characteristics of a simulated signature or in other words, a forged signature by processes of imitation. Mr. Osborn also in "The Problem of Proof," 384-385, explains the customary evidences of a spurious signature.

The same authority in the same book at page 485 quotes with approval certain extracts from the jury instructions delivered by Mr. Justice WILLIAM J. GAYNOR of New York in the case of Redmonds v. Manning, et al. Mr. Osborn in "Questioned Documents," 437-438, discusses the use of the typewriter in the preparation of spurious documents. This author in "Questioned Documents," 444-448, explains the differentiation of type forms between different machines.

Typewriting individuality in many cases is of the most positive and convincing character and reaches a degree of certainty which may almost be described as absolute proof. The identification of a typewritten document in many cases is exactly parallel to the identification of an individual who precisely answers a general description as to features, complexion, size, etc., and in addition matches a long detailed list of scars, birth marks, deformities and individual peculiarities.

As a means of identifying the particular machine upon which a writing was done or determining its date the examination of the type in question should be made in five ways: First, the design, size and proportions of all the characters. Second, the relation of the character as printed to adjacent characters or the vertical and horizontal alignment. Third, the vertical position of the character in relation to the line of writing--that is, its perpendicularity or slant to the left or right. Fourth, the comparative weight of impression of the upper, lower, right or left sides of each character, or, as the machine adjusters describe it, how the type stands "on its feet." Fifth, the condition of the type faces and the presence of defects, bruises, or "scars" in the letters due to wear or to accidents.

The court will read with pleasure and profit this entire chapter on questioned typewriting which appears in Mr. Osborn's valuable book, "The Problem of Proof" as chapter 25. The court in the instant case is confronted with this proposition, whether it shall accept and approve the verdict of the jury, declining to assume its judicial responsibility, or whether it shall accept and approve the verdict of reason, it being evident that there is in this case no such conflict of testimony as to justify the verdict rendered by the jury in the trial court.

Mr. Osborn in the same book, pages 268-269, explains the feasibility of discovering that a disputed document was not written on the date that it bears by progressive changes upon the machine that wrote such document. See too Ames on Forgery, page 117.

The testimony of attesting witnesses in a will may be overcome by any competent evidence. Ginter v. Ginter, 79 Kan. 721, 738, 23 L. R. A. (N. S.) 1024, syl. sec. 5, 101 P. 634; 2 Wigmore, Ev., secs. 886, 1514. Such evidence may be direct, or it may be circumstantial; and expert and opinion evidence is just as competent as any other evidence. Indeed, where the signature to a will is a forgery, and where the attesting witnesses have the hardihood to commit perjury, it is difficult to see how the bogus will can be overthrown except by expert and competent opinion evidence tending to show that the pretended signature is not that of the testator, but spurious. The rule contended for by appellants would frequently baffle justice and give judicial countenance to many a high handed fraud. 3 Wigmore, Ev., section 2014; McKay v. Laster, 121 N.Y. 477, 24 N.E. 711

In Boyd v. Gosser, (Fla.), 82 So. 758, 6 A. L. R. 500, we have a case of great value in the consideration of the case now before the court for its decision. The opinion in Boyd v Gosser, calls attention to the distinction between what is termed "moral evidence" and "physical facts." In the case at bar, the record contains both moral evidence and...

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13 cases
  • Fortenberry v. Herrington
    • United States
    • United States State Supreme Court of Mississippi
    • May 13, 1940
    ......498. . . The. evidence of the two attesting witnesses has greater weight. than that of any other witness. . . Smith. v. Young (Miss.), 99 So. 374; Maxwell v. Lake. (Miss.), 88 So. 328. . . H. C. Rawls, the attorney who drafted the will and who read ......
  • Ellis v. Ellis
    • United States
    • United States State Supreme Court of Mississippi
    • May 4, 1931
    ...... genuine signature, and have known the author for a long time,. are entitled to more consideration than experts. . . Smith. v. Young, 134 Miss. 738. . . Insanity. of a continuous nature once shown, is presumed to continue. . . Hitt v. Terry, ......
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    • United States State Supreme Court of Mississippi
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    ...... . . Wilson. et al. v. Beauchamp et al., 50 Miss. 24, 32; Roy. v. First National Bank, 30 So. 411; Smith et al. v. Young, 134 Miss. 738, 767-8; 12 Southern Digest,. Evidence, page 448, evidence key No. 561. . . It. cannot be disputed that ......
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    ...Executors, 5 Miss. (4 Howard) 459, 482 (1840). See also, Webster v. Kennebrew, 443 So.2d 850, 859 (Miss.1983), Smith v. Young, 134 Miss. 738, 766, 99 So. 370, 375 (1924). In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity. Fortenberr......
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