
    In the Matter of the Probate of a Paper Writing Purporting to be the Last Will and Testament of Joseph Albinger, Deceased.
    (Surrogate’s Court, Westchester County,
    December, 1899.)
    1. Experts — Judicial criticism, of, when inapplicable.
    Judicial criticisms, unfavorable to handwriting experts, should not be given controlling force, where the testimony of the experts tends to support the inference, as to genuineness, drawn from the surrounding facts, as well as to support the impressions of the lay mind.
    S3. Same — Experts as to handwriting.
    An opinion, as to handwriting, should depend, not so much upon mathematical measurements and minute criticisms of lines, or their exact correspondence when placed in juxtaposition with other specimens, as upon the general character and features of the handwriting — as would be the case in a recognition of the human face.
    Proceedings upon the probate of a will.
    C. H. & J. A. Young & Terry, for proponent.
    Richard M. Bruno, for contestant.
   Silkman, S.

The paper propounded is dated the 18th day of June, 1897. It is written upon one side of a portion of a full-sized letter sheet, the top evidently having been cut off with a knife or sharp instrument. With the exception of the alleged •signature of the testator and the alleged signatures of the witnesses and their addresses, it is concededly written by Fichólas Lauer, the proponent and only beneficiary.

The disposing part of the will is in three lines and a half in the following words: “And hereby give and bequeath unto Mr. Fichólas Lauer of Greece, Monroe county, F. Y., one half (1-2) of all my possessions in America cash and real estate.”

After the date of the instrument, which is at the beginning as well as at the end, these words appear: “Also do I appoint Mr. ¡Nicholas Lauer my executor.” 0

The only issue is, as to whether Joseph Albinger, the alleged testator, signed and executed the instrument offered for probate. The disposition of the question depends to some extent upon the expert testimony as to the handwriting. I am well aware of the judicial criticisms that have been heaped upon expert witnesses and the little weight that is generally given to such testimony. With the views expressed by judicial writers I do not disagree. There are, however, cases which are exceptional, where the testimony of the experts goes to support inferences drawn from surrounding facts, and supports the impressions of the lay mind as to the genuineness of the writing involved. The case in hand I think is one. I have examined, the many genuine signatures of Father Albinger, put in evidence as standards, and find that ivhile they vary greatly, still there is a characteristic appearance about them that is unmistakable; there is a dash and swing about the stroke which evidences a quick and confident penman, while, on the other hand, the signáture to the will, although it simulates the standards, the strokes appear to be labored and lacking the clean cut appearance of the true signatures.

I understand the rule to be that an opinion as to handwriting should depend not so much upon mathematical measurements and minute criticisms of lines, nor their exact correspondence in detail when placed in juxtaposition with other specimens, as upon its general character and features as in the recognition of the human face. Miles v. Loomis, 75 N. Y. 288.

Viewing the signature of Father Albinger in this light, I am of the opinion that the name “ Jos. Albinger,” purporting to ' be a signature to the alleged will, is not genuine.

This conclusion, however, is not based solely upon an individual opinion, but only as it is supported by the expert testimony and the surrounding facts and circumstances.

The instrument purports to dispose of only one-half of the testator’s property, and that provision is for the benefit of the beneficiary.

Under the letters A1 in the alleged signature there is clearly an erasure, and an apparent reinforcing of part of the letter “ b.” The expert Carvalho declared, unhesitatingly, that the signature is a forgery and was written by the same person who wrote the body of the instrument. Mr. Carvalho is an expert of wide experience, but in this case he was employed solely by the contestant. His •evidence, however, is supported by that of the expert Kinsley, who was called as a witness on the part of the contestant, but who had been first employed as an expert on the part of the proponent, and upon such latter employment had pronounced the signature a forgery.

Against this testimony we have but one expert on the part of the proponent, the witness Elliott, but whose experience is not •equal to that of either of the experts called by the contestant.

To this testimony we have added the strange tale of the proponent as to his advancing and loaning moneys to Father Albinger, and when examined as to the .sources from which the money was •obtained, and the manner in which the money was paid, we have such a maze of contradictions and incredible explanations and forgetfulness that a conclusion against the honesty of the proponent is inevitable.

We also have the evidence of the letter of the proponent to Maggie Tischler, and the conversation with the witness Kaiser, which is hardly to be reconciled with knowledge of the existence of a will at the time the letter was written and the conversation had.

It is alleged that at the time of the execution of this will that a note of $5,000 was executed by Father Albinger to the proponent, no mention of which is made in the will executed at the same time, and when the proponent is examined in regard to the moneys which were the consideration for the note, his testimony is so indefinite and contradictory, that it is impossible to give any credence whatever to his statements.

At the end of the case, and after the case had been substantially •closed, proponent attempts to support his testimony in regard to the loans to Father Albinger by entries in memoranda books which were not offered in evidence. They, however, are of such a character as to invite the suspicion that the entries were supplied for the occasion.

It is urged on the part of the proponent that the many circumstances which challenge the genuineness of the instrument offered are more than offset by the positive testimony of the witnesses to the instrument.

The witnesses, Henry Wingarter and Katie Wingarter, who are the brother-in-law and sister-in-law of the proponent, give positive and uncontradicted testimony as to the execution of the instrument,- identify it and testify positively that the words “ also do 1 appoint Mr. Nicholas Lauer my executor ” were written before the signature of Father Albinger.

I am not disposed to say whether these witnesses are honest or whether their testimony has been manufactured. Of one thing I am certain, that the words “ also do I appoint Mr. Nicholas Lauer my executor” were never written before the signature “Jos. Albinger.” This sentence is so clearly written in after the date-of the will, in su¿h a manner as to carefully avoid the alleged signature, that it would take more than the testimony of these two relatives of the proponent to satisfy me as to their recollection in reference to the writing of the sentence.

It may be, and the explanation is not improbable, that Father Albinger did on the 18th of June, 1897, at the St. Denis Hotel, in the presence of Henry Wingarter and Katie Wingarter, execute a will, but that the paper executed is not the document which is now offered for probate.

The evidence of the experts is that the names of the witnesses and their addresses are written over erasures of some character, apparently of pencil marks, and this is plainly evident to the naked eye. The experts also testify to the discovery of pencil marks under the signatures of the subscribing witnesses, leading to the conclusion that their signatures had been traced.

I repeat that in coming to the conclusion that, the will is a forgery, it does not necessarily follow that the witnesses are perjurers, but that they may be honestly mistaken. Their signatures upon the paper propounded may have been reproduced from a genuine document which has not come to light. There is testimony in regard to the character of the ink used at the hotel where the paper is alleged to have been executed, and is shown by the testimony of the experts and the experiments had in open court by the experts of both sides, that the ink used in writing the instrument propounded is not the same as that generally in the hotel, where it was alleged to have been drawn. To this testimony I attach little weight, for the reason that I do not think that it has been sufficiently shown that no other inks than Arnold’s Writing Fluid were in use, in the writing room of the St. Denis Hotel.

I have not thought it necessary to go into the detail of the-testimony, but briefly state my reasons for arriving at the conclusion that the instrument propounded for probate is a forgery-

A decree may be entered denying probate.

Probate denied.  