
    MORTIMER v. CHAMBERS.
    
      N. Y. Supreme Court, Special Term, First District,
    
    
      June, 1891.
    1. Trials documentary evidence,] A paper used as a standard of comparison on a question of handwriting, under the act of 1880 or its amendment, should be marked as in evidence irrespective of its relevancy to the issues.
    a. Statutes, amendment “ to read as follows ” with a saving clause.~\ The act of 1880,■ chapter 36, allowing comparison of a disputed writing with any writing proved to be genuine, is not superseded or impliedly repealed by the act of 1888, ch. 555, amending the former act, as to an action pending when the latter act was enacted, for the clause in the act as amended providing that “ nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending ”■ is only a saving clause as to the added amendment.
    
    
      2. Limitations.] An action to enforce the liability of a devisee for the debt of testator upon a note is not barred by the six years’ statute of limitations, although more than the time prescribed by such statute has elapsed between the making of the note and the bringing of the action, where the delay in bringing the action was necessitated in order to allow the three years to elapse after the issue of letters testamentary.
    Action by Sarah E. Mortimer, against Mary A. Chambers, William F. Chambers and William F. Fardon .as devisees of Louisa F. Fardon, to enforce against the meal estate devised an indebtedness of testator upon -.certain notes : The facts are fully stated in the opinion.
    
      Lucien Birdseye and W. J. Underwood, for plaintiff.
    
      C. Fine, for defendant.
    
      
       The two acts are as follows:
      Laws of 1880, chapter 36. “ Section 1, Comparison of a disputed writing with any writing proved to the satisfaction of the court to-be genuine, shall be permitted to be made by witnesses in all trials, and proceedings, and such writings and the evidence of witnesses-respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute- § 2. This act shall take effect immediately.”
      Laws of 1888, chapter 555. “ Section 1. Section 2 of chapter 36-of the Laws of 1880, entitled : An act to amend the law of evidence and practice on civil and criminal trials is hereby amended so as to-read as follows: § 2, Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or exe~ cuted the disputed instrument or writing shall be permitted, and submitted to the court and jury in like manner. But nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending. § 2. This act shall take effect immediately.”
      Before the amendment of 1888 the act of 1880 was held to be confined to the comparison of writings of the person whose signature is in question. Peck v. Callahan, 95 N. Y. 73,
      For the construction of these acts see Abb. Trial Brief on the JFacts, tit. Handwriting.
      
    
   Patterson, J.

This action is brought to enforce against certain real estate devised to the defendants Chambers, in and by the last will and testament of Louisa F. Fardon, an indebtedness claimed to be owing by the testatrix at the time of her death, to her sister, the plaintiff. That alleged indebtedness is presented in the form of three promissory notes as follows, viz.: one dated May E, 1879, for $253; another dated May 1, 1880, for $280; and another dated July 15, 1880, for $521.50. The complaint contains all the necessary averments to bring the cause within the provisions of the Code of Civil Procedure relating to and regulating such actions (secs. 1843-1850). 'The parties defendant are Mrs. Chambers, the daughter -of the testatrix, to whom a life estate in the realty was -given; William F. Chambers, a remainderman, and William F. Fardon, a son of the testatrix and an annuitant whose annual allowance is charged-upon the land. The suit was begun against the defendants Chambers on October 27, 1886.. In August, 1889, as appears from a paper (not marked in evidence, but which I understood on the trial was to be put in so that the defendants might.raise the question of the applicability -of the Statute of Limitations), Fardon was brought in as a party defendant by supplemental summons. The testatrix died December 25, 1880.

The plaintiff to establish her case produced the three promissory notes, the making and delivery of which were denied by the answers. Those notes were in the plaintiff’s possession before the testatrix died and the plaintiff was permitted to testify to the fact under the decision in Simons v. Havens (101 N. Y. 427). Further she offered in evidence, to prove the signature to the notes, a certain bond made and signed by Louisa F. Fardon. The defendant’s counsel is in error in stating that this bond was not put in evidence. It was admitted on the examination of Mr. Ames, and was made the standard of comparison ■although by some oversight it is not marked or recorded as being in evidence. I distinctly remember ruling that :it be marked as an exhibit in evidence, but not the mortgage accompanying it, and that is perhaps the reason the omission has occurred. The record should be" corrected, for the whole case was tried on both sides on the basis that the bond as a standard of comparison was in evidence. It was given in 1871 to the Home Insurance Company, and Mr. Coman fully proved that it was signed by Mrs. Fardon. The court was entirely satisfied that the person who signed that bond was the testatrix, and on the testimony of Mr. Ames, the expert in handwriting—as would also appear to the most unpracticed eye. by a simple inspection of the several instruments—it was convincingly established “to the satisfaction of the court” that the notes were not only signed by, but * that every word of them was in the handwriting of the testatrix. On'this proof a prima facie case of indebtedness was made out, unless the evidence as to the signature of Mrs. Fardon to the notes was improperly admitted. It was understood at the trial that I would consider that subject further on the final submission of the record and arguments. I have done so and adhere to what I stated to counsel on the trial.

The act of 1880 (ch. 36) controls. It is there provided that “ comparison of a disputed writing with any writing proved to the satisfaction of the Court to be genuine shall be permitted to be made by witnesses in all trials . . . and such writings and the evidence of witnesses respecting the same may be submitted to the Court and jury as evidence of the genuineness of the writing.” This statute has been commented on in Peck v. Callaghan (95 N. Y. 74), and McKay v. Lasher (121 N. Y. 482), and under the authority of those cases, in the act of 1880, applies the course pursued in comparing the signature (or the handwriting) of the notes with the signature of the bond, clearly shown to have been signed by the testatrix, was proper. It is contended, however, that the act of 1888, chapter 555, has superseded or operated a repeal by implication of the act of 1880, and that as the statute of 1888 was in force at the time of this trial, the evidence should not have been admitted. Section 2 of the act of 1888 makes some change in the act of 1880, but it is expressly provided that nothing therein contained shall affect or apply to any action or proceeding “heretofore commenced or now pending.” There is nothing in the latter act to indicate that it was the purpose of the legislature to deprive litigants in suits then pending of all benefit of the law which authorized the proofs of the genuineness of the handwriting of a disputed document by a comparison of the chirography of that document with other handwriting, satisfactorily proven to be genuine, of the person whose writing or signature was in contest. What is relied upon here as repealing the act of 1880 is nothing but a saving clause, and whatever may have prompted the legislature to pass the act of 1888, it is not to be considered that it intended to take away a right or even a remedy in pend ing cases conferred by the act of 1880 and give it at the same time to litigants in cases that might be begun the next day. Such a construction of the statute would be unjust and oppressive in the extreme, and a comparison of the two acts will plainly indicate that the legislature had no such absurd intention. The act of 1880 was in force as to all actions brought before or pending at the time the law of 1888 was passed and applied to this cause.

The testimony in all essential matters áustained the averments of the complaint, including proof of the want, of assets to pay the claim. The affirmative defenses were not maintained. The six ygars’ limitation, I think, does not apply, and that is the only one set up in the answer. If this were a proceeding in the surrogate’s court by an executor to sell lands for the payment of debts, that limitation would control (Butler v. Johnson, 111 N. Y. 213); but this plaintiff could only procure relief by an action in equity, and was obliged to wait until three years had expired from the probate of the will of the testatrix. I think the statute pleaded does not apply (Wood v. Wood, 26 Barb. 356; Butler v. Johnson, 111 N. Y. 204, 213). and that the plaintiff is entitled to a decree, with costs.  