Culavin v. O'Connor

Rose, J. This is a proceeding commenced in the county court .of Adams county May 12, 1914, to probate an instrument described as the last will of John O’Connor, who died in Hastings, August 17, 1913. John T. Culavin is proponent and in the document offered by him for probate he is named as sole beneficiary. Contestants claim to be heirs of O’Connor and assail the purported will as a forgery. The county court sustained the instrument as genuine, but on — 619 — appeal to the district court a jury rejected it. From a judgment on the verdict in favor of contestants, proponent has appealed. The principal question for review is the sufficiency of the evidence to sustain the verdict, which contains in effect a finding that the instrument offered for prohate is a .forgery. Throughout the record the purported will is described as “Exhibit A.” J. H. Culavin and J. K. Scott, who appear on the face of the disputed writing as subscribing witnesses, are dead. Their signatures were identified at the trial by witnesses who testified to having seen them write their names, but on the issue as to handwriting proponent’s witnesses were contradicted by witnesses for confiestants. Proponent testified in substance: Exhibit A was executed in the office of the Northwestern Hotel in Hawarden, Iowa, February 25, 1887. It ivas written by O’Connor himself, who used a modified copy prepared by proponent under O’Connor’s direction, the modified copy having been prepared from a draft made the previous day by J. A. Ashley, a real estate agent, who was consulted by O’Connor. Exhibit A was delivered to proponent by O’Connor April 1, 1887, and was afterward kept in the former’s possession. This is the testimony of proponent, and he explains the delay in offering the instrument for probate by saying that after O’Connor’s death he could not find the will until April, 1914, but then found it folded in a paid-up insurance policy. There is testimony tending to corroborate proponent’s story of the execution of the will and of his possession thereof during O’Connor’s lifetime. Other testimony of proponent tended to prove that he was a nephew of O’Connor; that the latter moved to Hastings in 1876; that he died there August 17, 1913; and that he had visited Hawarden February 25, 1887. On behalf of contestants there is testimony tending to prove that the O’Connor who died in Hastings, August 17, 1913, was not in Hawarden February 25, 1887, and in other respects casting suspicion on testimony of proponent. The sufficiency of the evidence to sustain the verdict, however, does not depend alone on proofs of the character — 620 — indicated. - Other proofs in the form of documents and expert testimony are more satisfactory. The disputed writing was introduced in evidence and speaks for itself in comparison with checks and letters covering a period of years beginning prior to the date of the purported will. These checks and letters are conceded to be genuine. For purposes of comparison exhibit A, the disputed instrument offered for probate, exhibit DD, a genuine letter written by O’Connor to proponent ten months before the purported will is alleged to have been executed, and exhibit CC, a genuine letter written by O’Connor nine years after the alleged execution of the disputed instrument, are reproduced herein. — 621 — — 622 — Identifying characteristics and habits revealed by the letters reproduced are- traceable in many other genuine documents introduced in evidence. Witnesses for contestants agree with proponent that whoever subscribed the name “John O’Connor” to Exhibit A, wrote the instrument itself, including the attestation clause. On the face of the disputed and the genuine writings, differences in the handwriting are obvious. Many of the earmarks which characterize O’Connor’s handwriting as disclosed by the genuine documents cannot be found in the alleged will. The genuine writings disclose a uniformity of style at variance with the instrument offered for probate. If O’Connor wrote that instrument, in penning it he overcame habits which previously and subsequently controlled him in writing checks and letters, and he also concealed earmarks which are obvious in his other writings. Habits formed by O’Connor in using a pen or pencil are revealed in all of the genuine instruments, but they do not appear to have influenced the writer of the disputed will. Two expert witnesses called by contestants expressed the opinion that O’Connor did not write the disputed instrument, and they gave reasons for their conclusion. Some of the reasons for the opinion that the offered will is a forgery follow: In handwriting there is a difference in the general appearance of the disputed and the genuine writings. There is also a variance in the slant of the letters and in the spacing. In the capital letter “I” the • lower loop is below the base line in the genuine and above it in the disputed writings. In the genuine, the small letter “a,” when not the first letter in a word, is not joined to the preceding letter, while it is otherwise in the disputed writing. In the genuine, the cross-mark of the “t” generally appears to the right of the stem, while it generally crosses the stem in the purported will. The two parts of the letter “k” are generally separated in the genuine documents and connected in the disputed will. In the genuine, the apostrophe in the name “O’Connor” is generally made with an upward movement, and with a downward- movement in the disputed will. The difference in the letter “x” is marked. There are also other indications of forgery. — 623 — The qualifications of the expert witnfesses called by contestants are challenged, but they both show candor and scientific knowledge. The experts did not confine themselves to mere opinion, but supported their conclusion by reasons which appeal to the judgment. Such testimony on the subject of handwriting, when considered with genuine and disputed writings, may amount almost to a demonstration. Venuto v. Lizzo, 132 N. Y. Supp. 1066. The testimony in the present case recalls the following observations : “Handwriting is an art, concerning which correctness of opinion is susceptible of demonstration, and I am fully convinced that the value of the opinion of every handwriting expert as evidence must depend .upon the clearness with which the expert demonstrates its correctness. That demonstration will naturally consist in the indication of similar characteristics, or lack of similar characteristics, between the disputed writing and the standards, and the value of the expert’s conclusion will largely depend upon the number of those characteristics which appear or are wanting. The appearance or lack of one characteristic may be accounted to coincidence or accident, but, as the number increases, the probability of coincidence or accident will disappear, until conviction will become irresistible.” Gordon’s Case, 50 N. J. Eq. 397, 422. To refute the proofs and inferences of forgery, proponent points to the apparent age of the purported will — a fact conceded by a witness who testified as an expert on behalf of contestants. In this connection it is argued that there was no motive for forging a will February 25, 1887. The argument is not convincing. There is testimony tending to prove that O’Connor had recently abandoned a life of adventure among Indians; that as a cobbler he settled among strangers at Hastings and there led a quiet life for a quarter of a century; that at some time by some means he had accumulated considerable property. His life may have been in peril. With its secrets proponent was familiar. Under the circumstances the jury were not required to find that the apparent age of the document and the lack of motive disproved forgery. — 624 — In the argument counsel attached importance to the fact that “Culavin,” the name of proponent, is misspelled in the alleged will. He argues that proponent would have spelled his own name correctly in forging a will for his own benefit. The argument is not conclusive. Open minds of jurors should reason from all of the sources of legitimate inference in connection with the misspelled name. Motives prompting a forgery may also suggest a means of avoiding suspicion. O’Connor knew how to spell proponent’s name. He wrote it correctly in the genuine letter marked “Exhibit DD.” This was ten months before the date of the purported will. He had not forgotten how to spell “Culavjn” nine years later when the genuine letter marked “Exhibit CC” was written. According to proponent’s testimony, O’Connor in drawing the will followed a copy prepared by proponent himself. In examining the will offered for probate, it will be observed that proponent’s name is twice misspelled therein, but that halting and erasing attended its misspelling the second time. On an envelope postmarked two months after O’Connor’s death, the name “Culavin” is written “Culivan,” but in committing this error the writer evidently wrote the last syllable correctly and afterward changed the “i” to “a” — what seems to have been done in the writing of the purported will offered for probate. In an instrument dated August 1, 1913, and purporting to be O’Connor’s will, “Culavin,” beneficiary, is also misspelled. It is likewise misspelled in a letter of the same date, denounced by experts as a forgery, the letter containing the statement that O’Connor had made a will naming Culavin as beneficiary. The erasure in the misspelling of the name and the misspelling itself may have had a sinister import when considered by the jury. There is a reasonable aspect, therefore, in which the misspelling does not strengthen proponent’s case. The credibility of the witnesses whose testimony is conflicting in regard to the genuineness of the will offered for probate and the weight to be given to the testimony of those called as experts in handwriting were questions — 625 — for the jury. Davis v. Lambert, 69 Neb. 242; Hayden v. Frederickson, 59 Neb. 141. The conclusion is that the evidence is sufficient to sustain the finding of the jury that the instrument offered for probate is not the last will of the John O’Connor who died in Hastings, August 17, 1913. A ruling of the trial court in refusing to permit a witness for proponent to testify to the genuineness of the signature of Scott is challenged as erroneous. Though the witness testified to having seen the signature of Scott, the ruling assailed must be sustained for the following reasons: The witness had seen Scott’s signature only twice, and this was 20 years or more before the trial. He did not testify that he had formed an idea of the character of Scott’s handwriting. There was, therefore, no abuse of discretion on the part of the trial court — an essential element of error. 1 Wigmore, Evidence, sec. '694. Another assignment of a similar nature is directed to" the rejection of offered proof by another witness who was not permitted to testify to Scott’s signature. This witness did not qualify as an expert in handwriting, but he was asked to express an opinion on the genuineness of Scott’s signature, basing his answer on a comparison with two signatures which he had seen Scott write. These signatures were in evidence. In making the comparison the witness, not being an expert on handwriting, was no better qualified than the jury to express an opinion based on comparison of signatures. The law has been stated thus: “Where specimens are brought into court, there is no need of any opinion based on them except from pérsons skilled in handwriting; for the jury'can judge as well as any other laymen.” 3 Wigmore, Evidence, sec. 1997. Another point argued is based on the reading of the testimony of a witness who, as an expert in handwriting, had testified in the county court. During the trial in the district court the expert was in Chicago, engaged in a hearing requiring his attendance for two weeks. In permitting the reading of this testimony under the circumstances, the trial court did not err. Jerich v. Union P. R. Co., 97 Neb. 767; 2 Wigmore, Evidence, sec. 1404. It is — 626 — argued, however, that error was committed in allowing the cross-examination and the redirect examination of the expert to he read in evidence over the objection of proponent, since, had the witness been on the stand, cross-examination could have been waived. The argument is technical and the rule invoked by proponent might conceal facts- essential to a just decision. The purpose of a trial is to discover the -truth and administer justice. Where competent testimony on a former trial came legally from proper sources of information, it should not be rejected on a second trial of the same case merely because one party rather than the other made the inquiry which developed the truth. Ulrich v. McConaughey, 63 Neb. 10. The cross-examination to which objection is made consisted principally of questions and answers relating to the competency of the expert and to the reasons for his opinion that the will offered for probate was not genuine. Documents revealing the characteristics or habits from which the expert reasoned in his cross-examination were properly before the jury. Information of this nature might have been brought out on direct examination had the expert been available during the trial in the district court. The rule is: “On direct examination, the witness may, and, if required, must point out his grounds for belief in the identity of the handwriting, on the principle already considered (ante, sec. 655). Without such a re-enforcement of testimony the opinions of experts would usually involve little more than a counting of the numbers on either side.” 3 Wigmore, Evidence, sec. 2014. Complaint is also made of the refusal of the trial court to permit three witnesses, who had seen O’Connor write, to testify to the genuineness of his signature as it appears on the will offered for probate. These witnesses were called on rebuttal. In a proceeding to probate a will, contested on the ground of forgery, where the subscribing witnesses are dead, proof of the signatures of the subscribing witnesses and of testator is necessary, and proponent should introduce his evidence as to the genuineness of such signatures, and the trial court in its discretion — 627 — may refuse to permit him, on rebuttal, to offer additional affirmative evidence on that issue. Error in the proceedings' has not been shown. The judgment is therefore Affirmed.