Ware v. Burch

• Decision Date: 24 November 1906
• Citation: 42 So. 562,148 Ala. 529
• Parties: WARE v. BURCH ET AL.
• Court: Alabama Supreme Court

42 So. 562

148 Ala. 529

WARE v. BURCH ET AL.

Supreme Court of Alabama

November 24, 1906

Appeal from Probate Court, Russell County; H. T. Benton, Judge.

"To be officially reported."

Contest between A. B. Ware, administrator of A. E. Broadhurst deceased, and T. G. Burch and others, as to the settlement of the estate. From an adverse judgment, the administrator appeals. Affirmed.

The controversy from which this appeal is taken originated in a settlement of the estate of A. E. Broadhurst, deceased, by the administrator, appellant here, in which he sought to charge the estate with a sum of money evidenced by a promissory note, alleged to have been made by the decedent to B. M. Ware and by him transferred to A. B. Ware. This item was contested upon the alleged grounds that neither A. E Broadhurst nor any one authorized by her executed the note in question. The facts concerning the testimony appear in the records as follows: J. W. Almon testified that he knew Mrs Broadhurst from 1883 to the latter part of 1901, a short time before her death; that he had had considerable business with her, had filled her written orders for goods, had often seen her write, and knew her handwriting. Witness was handed by contestant's counsel six notes to which decedent's name was signed, and which notes were used by the administrator as vouchers in this settlement, and he testified that the signatures thereto were in the handwriting of Mrs. Broadhurst. He was then shown the signatures with the note in controversy, and was asked whether or not this signature was in Mrs. Broadhurst's handwriting. Upon objection to this question upon the ground that the witness was not shown to be an expert, and a nonexpert could not properly testify to a signature from a comparison of handwritings, counsel for contestant stated that the questions propounded to the witness after the signatures to the six notes, which were in evidence on the settlement, were for the purpose of identifying them, that they might use them as a basis for comparison by expert witnesses subsequently to be introduced, and that witness was asked the question with reference to Mrs. Broadhurst's signature to the contested note on his knowledge of her handwriting, and not from comparison. The court permitted the witness to answer the question, and the administrator excepted. The administrator was introduced as a witness in his own behalf, and testified that he knew Mrs. Broadhurst all his life; that she was his aunt; that he had frequently seen her handwriting, and was familiar with it; that he knows it when he sees it. He examined the signature to the note in controversy, and was asked to say whether or not, in his opinion, the signature to said note was in the handwriting of Mrs. Broadhurst. Contestant objected to this question on the ground that the witness was the owner of the note and interested in the result of the contest, and was therefore not competent to testify to the handwriting of the decedent. The court sustained the objection, and refused to allow the administrator to testify; and these questions of evidence are made the basis of the assignments of error.

Albert E. Barnett, for appellant.

J. L Pollard and Frank De Graffenreid, for appellees.

ANDERSON J.

"The competency of persons to give their opinions as to whether a given signature is in the proper handwriting of the person by whom it purports to have been made is not confined to experts. Any witness who has seen the party write, or who knows his handwriting, may express his opinion as to the genuineness of the signature. Of course, the extent of his familiarity will enter into the weight of his testimony. Wharton on Ev. §§ 707, 708; 1 Brick. Dig. § 1078. Experts may go further; but then, to legalize such testimony, the witness must first be shown to be an expert--that is, accustomed to and skilled in the matter of handwritings, genuine and spurious. These may institute comparisons between writings of unquestioned genuineness and the writing in dispute, and may give their opinion whether both were written by one and the same person. They may, also, give their opinion whether a given writing is genuine, or a feigned or forged signature. There are certain other matters pertaining to handwriting about which they can give their...