Watson v. Duncan

Calhoon, J., delivered the opinion of the court. Both these cases were submitted together, and will be decided together. Duncan was not satisfied with the provision made for him by the will of his wife, renounced, and claims one-half her estate, there being no issue of the marriage. He, while a widower of fifty-nine years of age, and she, while a widow of fifty, intermarried under a marriage contract. He admits signing the contract, but seeks to avoid it on the ground that she, after its execution, forged a vital part of it. At the time of the marriage he was without property, and she was, for this section, comparatively rich, and, from her standpoint, the ante-nuptial contract was, as we think, wise and proper in her surroundings; so the case must turn on whether the part of the contract italicized in the following copy of it was or was not a forgery: “This is a contract entered into between Mrs. J. W. Manning and Dr. B. A. Duncan, this the 30th day of January, 1894. “I will always let you do just as you wish about everything in this life. You will never keep house unless you wish and of your own accord. I will always let you attend to your own business, and will never ask you about your will. Tou can will your property as you want to any persons. I will love you above all else as long as life shall last. All this I will swear to. “[Signed] Burwell Alexander Duncan. “Witnessed this day by Mrs. Eicholtz and Mrs. J. E. Maronne.” On the next page are written, concededly by Mrs. Manning, these words: “As Dr. B. A. Duncan has promised and sworn on the Holy Bible to keep this contract written on the other side of this — 772 — sheet in every particular, I promise to marry him this evening, January 30, 1894. “[Signed] J. W. Manning." The paper signed by Duncan was written by Mrs. Eicholtz at the dictation of Mrs. Manning, there being present Duncan, Mrs. Manning, Mrs. Maronne, and Mrs. Eicholtz when it was written and signed. There is no controversy as to the integrity of the document except as to the words, “You can will your property as you want to any persons.” Duncan was the first witness examined, and, waiving for the present his competency against the estate, he testifies absolutely that these words are forged, and, to make sure of fixing the forgery on his wife, he testifies that they are in her handwriting. Since the words appear consecutively in the instrument without paragraph, the proof of the forgery-must be plain to destroy the paper as to them, especially as they are germane to the immediately preceding words: “I will never ask you about your will.” Duncan is not a competent witness in this case, and all his testimony about what was done in his wife’s lifetime must be retired from view. We will examine the testimony of Mrs. Eicholtz, who wrote the instrument. Now, bearing in mind the only words objected to — viz., “You can will your property as you want to any persons” — Mrs. Eicholtz testifies that she didwrite somethingwhere those words are, but cannot remember what; but she says: “The words Svant to’ and persons’ I did not write, and I am not sure about theAvord 'property.’ ” With these three words left out, the sentence just following — bear in mind, the sentence, “I will never ask you about your will”- — -would read: “You can will your-as you--any persons.” The imagination can hardly fill these blanks Avith any intelligent words other than those she says she did not write. When asked what she did write there, she says: “I do not remember Avhat it Avas, but I feel as if I thought, if there had been anything about willing property, I would have remembered it, as I remembered the — 773 — other part of the contract.” Note that “will” had appeared in the preceding sentence, which she did write, and note that other witnesses think the handwriting the same, and note that it was on'very common paper, and note that eight years had elapsed, and it is much easier to conclude that the good lady was mistaken than to stamp as a deliberate forger the deceased, Mrs. Duncan, a lady of high character and intelligence, who manifestly had her mind on her will when the contract was drawn. It must also not be forgotten that Mrs. Duncan had carried this paper about with her for years. Mrs. Maronne, the other lady present, says nothing was said “about willing property,” but she says she looked on the whole thing “just as a joke,” paid no attention, and did not put down her work to sign it as a witness, but got Mrs. Eicholtz to sign her name for her. These two witnesses hardly fix forgery on Mrs. Duncan in the light of all the evidence in the case. We come now to the testimony of experts. Dr. Stockard, for Duncan, testifies that, in his opinion, the words “You can,” the words “want to,” and the word “persons” are not in the same handwriting with the rest of the paper. So, now, according to him, the reading in the same hand is: “--will your property as you--any-.” But, as we have seen, according to Mrs. Eicholtz, the draftsman, it would read: “You can will your - as you--any persons.” Dr. Stockard thinks the words filling the blanks resemble the handwriting on the reverse side of the paper, written, as all concede, by Mrs. Duncan, but he says: “I can’t be positive about the identity of the handwriting on the two sides of the paper.” Col. W. C. Richards, summoned as an expert by Duncan, thinks the words “want to” were not written by the person who wrote the contract, and is “inclined to believe” the words “you can” were not. So at most, according to his opinion, the sentence would read: “----will your property as you- - any persons.” According to Mrs. Eicholtz: “You can — 774 — will your-as you--any persons.” According to Stockard: “--will your property as you --any -.” Col. Rickards also thinks the word “to” after “want” is in the handwriting of the reverse page written by Mrs. Duncan. Mr. T. B. Franklin thinks there is a “reasonable doubt” about the words “you can” and “want to” being written by the same hand. He says all the balance is in the same handwriting. Further on he is decided in the opinion that the words “you want to” are in an entirely different handwriting. So, according to him, the reading is: “--will yo'ur property as - - - any persons.” According to Mrs. Eickoltz: “You can will your- as you-any persons.” According to Stockard: “--- will your property as you--any-.” According to Col. Richards: “--will your property as you --any persons.” Mr. H. Osborn says the words “you” and “can” and “property” and “want” and “to” and “persons” are different in handwriting from the body of the contract. So, according to him, the reading is: “--will your - as you --any-.” Mr. P. W. Maer, for appellee, discards “you can” and “property” and “want to” and “persons,” and so, according to him, the genuine sentence is: “--will your-as you--any-.” R. F. Williams, for appellants, testifies that, in his opinion, the whole of the contract is in the same handwriting, and no forgery about it. C. H. Ayres, for appellants, testifies that in his opinion “the person who wrote the body of the document wrote the entire thing, with the exception of the signature.” Now, the original paper is before us. We have examined it with great care and with a powerful magnifying glass. In the only controverted sentence, which is, “You can will your prop — 775 — erty as you want to any persons,” we see that the word “property” seems to be written above a thin place in the paper, or an erasure, and so of the last syllable “sons” of the word “persons,” and so of the word “want;” and the word “to,” just aftef it, is very close between “want” and “any.” Now, at the risk of being tedious in this important case, involving the good name of a dead woman of flawless reputation, we put in juxtaposition what each and every witness says in reference to the only disputed clause, which is: “You can will your property as you want to any persons.” Duncan says the whole sentence is a forgery. He is contradicted by every other witness. Mrs. Eicholtz would leave the genuine sentence thus: “You can will your-as you--any persons.” Mrs. Maronne remembers no talk about willing property. Dr. Stockard would leave the sentence thus: “--will your property as you--any-.” Ool. Richards thus: “--will your property as you--any persons.” Mr. Eranklin thus: “--will your property as--■-any persons.” Mr. Osborn thus: “--will your-as you--any -.” Mr. Maer thus: “--will your-as you--any-.” Mr. Williams thinks the whole in the same handwriting with the rest of the contract. Mr. Ayres thinks the same person wrote “the entire thing.” All the experts called on both sides had about equal opportunities to become experts. Ool. Richards, for appellee, says there are marks of erasure at the wprds “property” and “persons.” H. Osborn, for appellee, says there “appears to have been an erasure under the words ‘you’ and ‘property’ and ‘want’ and ‘persons’ in the last syllable of it,” and that he “noticed a distinct thinness of the paper at those points, and a thinness in another point of the paper,” not controverted. P. W. Maer, for appellee, says “it looks as if” there were erasures at “can” and “property” and “sons” in the word “persons,” and ascertains this by holding the paper to the light, when “it appears thinner and — 776 — more transparent.” R. F. Williams, for appellants, says he sees thinner and more transparent places at “want” and “sons” in “persons,” but cannot say whether the appearance under the word “property” is thinness or erasure. C. H. Ayres, bank teller, witness for appellants, says: “Under the word ‘property’ it seems to be a natural thinness of the paper. In the word ‘want,’ where the letter ‘a’ occurs appears to have been erased.” In'all the conflict of testimony and contrariety of expert opinion in this case, and the uncertainty, from the lapse of time, poor quality of paper, and its usage, whether the changes were made before or after its execution, and the nonsense of the sentence without the words objected to, we recoil from fixing the brand of forgery on the memory of Mrs. Duncan. The other contentions of appellee we regard as without merit. Reversed, and decree here in both cases dismissing the bills in both cases; costs of both to be taxed appellee.