
    MONROE’S ESTATE.
    
      N. Y. Surrogate's Court;
    
    
      May, 1889.
    1. Evidence; leave to photograph adversary's documentary evidence.} The court may require the proponent of a will to allow a contestant who questions its genuineness to take a photograph of it.
    2. The same; filing.} Where an alleged will, the genuineness of which was contested, was executed in triplicate, the court1 on application of a contestant ordered that two of the three parts should be filed pending the contest.
    •-S. The same; subjecting adversary's document to chemical tests.} The court have power to require the proponent of a will, the genuineness of which is contested, to allow it to he subjected to chemical tests for the purpose of disclosing the nature of the composition of the ink, and what processes it may have been subjected to.
    
      Probate of will.
    The facts appear in the opinion.
   Ransom, S.

This is an application by the special guardian and contestant in this proceeding, which is now pending before the assistant, for leave to photograph the various-papers which have been filed as the will of deceased, and to-compel the filing of two parts of one of said wills, which was executed in triplicate; likewise, that the last paper be-subjected to chemical tests for the purpose of disclosing the nature of the composition of the ink and the' process or processes to which it has been subjected.

.Upon the oral argument the surrogate decided the applications first stated in favor of the petitioner, reserving only the question of his power to direct or permit the chemical tests. The special guardian on the oral argument stated that-he was unable to find any authority for the application.

Consultation of the various sources of authority upon the subject of expert testimony, and the various tests for the-purpose of establishing or disproving handwriting, has not resulted in the discovery of any authority for granting the-application. It is apparent, however, from some of the cases, that such an examination must have been permitted for instance, in Fulton v. Hood (34 Pa. St. 365) expert testimony was received in corroboration of positive evidence-to prove that the whole of an instrument was written by the same hand, with the same ink, and at the same time. It is-inconceivable how testimony of any value could be given as • to the character of ink with which an instrument was written, unless it had been subjected to a chemical test. The-writer of. a very valuable article in the eighteenth volume of the American Law Register, page 281 (R. U. Piper, an eminent expert of'Chicago, Ill.), in commenting upon the raleas stated in the case of Fulton v. Hood (supra), very properly says : “Microscopical and chemical tests may be competent-to settle the question, but these should-not be received as--evidence, I think, unless the expert is able to show to the •court and the jury the actual results of his examination, and also to explain his methods, so that they can be fully understood.”

The writer of this article is also authority for the statement that in the French courts every manipulation or experiment necessary to elucidate the truth in the case, even to the destruction of the document in question, is allowed ; the -court, as a matter of precaution, being first furnished with a certified copy of the same.

The most obvious argument to be urged against allowing a chemical test to be made on a will, and one that was suggested by the court on the argument of this motion, is that, inasmuch as the paper may be the subject of future controversy in this or some other tribunal, future litigants should not be prejudiced by any alteration or manipulation of the instrument. I do not think, however, that this objection is sound. Take an extreme case of permitting a sufficient amount of the ink (which the affidavit of the expert shows to be but infinitesimal) for the purpose of chemical examination ; thé form of the letter would remain upon the paper ; if not, the form and appearance of the entire signature might, as a preliminary precaution, be preserved by photography. The portion of the signature remaining would afford ample material for future experiments and Investigations in any subsequent proceedings wherein it might be deemed advisable to take that course.

Because the subject matter of the controversy may be "litigated hereafter should not deprive parties in this proceeding of any rights which they would otherwise have. 'They certainly are entitled to all rights in this proceeding that the parties to any future proceedings would have. Besides, all the parties whose presence would be necessary •to an adjudication in, for example, an ejectment proceeding, are (or their privites are) parties here. It certainly can not :be that the laxv, seeking the truth, will not avail itself of ithis scientific method of ascertaining the genuineness of the instrument because of some problematical effect upon the rights or opportunities of parties to future litigations respecting the same instrument. The possibilities of litigation over a will are almost infinite, and if such a rule should-obtain, this important channel of investigation would be closed: Suppose the same objection were raised to the-first action of ejectment which might be brought, it might then with the same force be urged that parties to some-future ejectment suit would be prejudiced by a chemical' test of the ink used in the will; and so on ad infinitum.

By not availing itself of this method of ascertaining the-truth as to the character of the ink, the court deprives itself of a species of evidence which amounts to practical demonstration.

I can see no reason why the application should not be-granted. The administration of justice profits by the-progress of science, and its history shows it to have been almost the earliest in antagonism to popular delusion and-superstition. The revelations of the microscope are constantly resorted to in protection of individual and public-interests ... If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy,, there is no reason why they should be deemed unreliable in-matters of evidence. Wherever what they disclose can aid or elucidate the just determination of legal controversies there can be no well-founded objection to resorting to them ” (Frank v. Chemical Nat. Bank, 37 Super. Ct. [J. & S.] 26, 34; aff’d in court of appeals, 84 N. Y. 209).

Note.—For a precedent of an order impounding a document for the purpose of instituting prosecution for perjury, see 1 Abb. New Pr. & F. 297, f. 102.  