Shinkle v. Crock

The opinion of the court was delivered by Lewis, J. On the trial of an issue to decide upon the validity of an instrument purporting to be the last will of Susan Crock, and appearing to have been executed by attaching her mark instead of her signature, the court below permitted a witness, not present at the execution, to testify to his belief that the mark was genuine. The witness stated, as the foundation of his belief, that he was acquainted with her mark, and that it had certain peculiarities which distinguished it from others. In admitting this evidence, it is probable that the court below was influenced by the decision of Lord Chief Justice Tindal, in George v. Surry, 1 Moody & Malkin 516. In that case an endorsement of a bill of exchange, made by means of a mark, was proved by a witness not present at the act, but who stated that he “ had frequently seen the endorser make her mark, and so sign instruments;” and the witness, as in the case now before us, pointed out some peculiarity. But the weight of this decision is diminished by the considerations that it was made in the necessary [162] haste of a trial at Nisi Prius; that the Lord Chief Justice did not admit the evidence without some hesitation ; and that no objection was made to the testimony, because the case was undefended. In Engles et al. v. Bruington, 4 Yeates 346, which was the case of a will to which the testatrix had affixed her mark in the presence of two witnesses, one of whom was out of the state at the time of the trial, the court admitted evidence of the handwriting of the absent witness, but refused to go into evidence of the genuineness of the mark, declaring that “ to attempt to prove a mark to a will would be idle and ridiculous.” Without adopting the strong expression used by the court in the case last mentioned, we cannot doubt that the admission of such testimony would lead to great uncertainty, and open a door to fraud. It would be far more dangerous in the case of wills, than in other instruments, where living parties may have some means of counteracting its effect. The proof of handwriting, by witnesses not present at the execution of the instrument in dispute, stands upon no higher foundation than the opinion of the witnesses, founded upon a comparison of the writing in dispute, with other writings recollected by them and known to be genuine. That opinion is entitled to more or less weight, according to the opportunities which the witnesses may have had for forming a correct judgment. If they had seen the party write a great deal, and frequently, much credit would be due to their opinions. If, on the contrary, they had seen him write but his name, and that only in a single instance, but little regard should be paid to such testimony: 2 Star. N. P. 164, Powell v. Ford. If the witness had seen the party write only his surname, it was thought by Lord Ellenborough, that he could not be received to prove the signature ; but Lord Chief Justice Abbott entertained a different opinion, and permitted a witness who had seen the party write only his surname and the initials of his Christian name, to prove the signature: Lewis v. Saphio, 1 M & M. 39. In Smith v. Evans, 1 Wils. 313, the objection to the substitution of a seal for a signature to a will was placed upon the ground that it would lead to forgeries, inasmuch as a seal could not be proved like the handwriting of the testator: 2 Saunders Pl. & Ev. 1262. We have gone far enough in receiving the bare belief of a witness, founded upon a comparison of the writing in dispute, with some specimen of which he may have but a faint recollection. Where a mark, on inspection, appears to have nothing in its construction to distinguish it from the ordinary marks used by illiterate persons to authenticate their contracts, it is not the subject of this description of evidence. It has been decided that the Act of 27th Jan., 1848, can have no operation in cases where rights had vested, by the death of the alleged testator before its enactment: Greenough v. Greenough, 1 Jones 497. This decision was but a just affirmance of clear [163] constitutional rights, and is founded upon a proper regard for the distribution of power established by the people in their fundamental law. The instrument before us can therefore derive no support from the retrospective provisions of the Act of 1848. It must stand or fall by the law which existed when the rights of the parties vested by the death of the alleged testator. But we have no inclination, until constrained by the urgency of the case, to re-examine the question whether, according to the true construction of the Act of 8th April, 1833, a will may, in any case, be valid if executed by means of a mark instead of the signature of the party. It is sufficient for the decision of this case to say that the paper in dispute was not shown, by the competent number of witnesses, to have been executed in any form. Judgment reversed and venire de novo awarded.