
    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
    
    
      Filed 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.
    2. 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.
    Affirmed 47 App. Div. 643.
    Proceedings upon the probate of a will.
    O. H. & J. A. Young & Terry, for proponent; Richard M-Bruno, for contestant.
   Silkman, S.

The paper propounded is dated the 18th day of June, 1891. 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 Nicholas Lauer, the proponent and only beneficiary.

The disposing part of the will is in three lines and a half in the following words: “ And thereby give and bequeath unto Mr. Nicholas. Lauer of Greece, Monroe county, N. Y., one half (1-2) of all my possession 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.”

■ 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 while 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 signature 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 “Al” 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. Oarvalho 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 Tisckler, 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 I appoint Mr. Richolas 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. Richolas 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 such 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. T'o 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.

NOTE ON EXPERT EVIDENCE OF HANDWRITING.

GENERALLY.

A skilled witness may testify from the peculiar form of the letters and their unusual or peculiar connection one with the other, that two documents were written hy the same person. Roe v. Roe, 40 N. Y. Sup. Ct. 1.

Under the statute, the proof of genuineness is to be addressed to the court as distinguished from the jury. Hall v. Van Vranken, 28 Hun, 403.

An expert may testify that he found no evidence in the signatures to a disputed deed that they were simulated imitations instead of genuine signatures. Sudlow v. Warshing, 108 N. Y. 520.

In Kentucky the evidence of an expert is excluded so long as the evidence of those personally acquainted with the handwriting is available. Fee v. Taylor, 83 Ky. 259.

A skilled observer may testify to the resemblance claimed to exist between the handwriting of the alleged forger and the handwriting in the forged instrument. Com. v. Webster, 5 Cushing (Mass.), 295.

The theory upon which experts are allowed to testify is that handwriting is always in some degree the reflex of the nervous organization of the writer, which, independently of his will, and unconsciously, causes him to stamp his individuality upon his writing. Gordon’s Case, 50 N. J. Equity, 397.

A witness may compare two or more signatures, all being in evidence, and state his inference as to whether they were written by the same person. U. S. v. Darnaud, 25 Fed. Cas. 14,918.

In jurisdictions which reject the inference as to whether a writing is that of the ostensible writer which is gained by comparison, that method cannot be used to identify the writer of a feigned or forged document. U. S. v. Prout, 27 Fed. Cas. No. 16,094.

None but an expert witness can testify to a resemblance of the writing in an imitated document to the handwriting of a person who is alleged to have forged it. Neall v. U. S., 118 Fed. 699.

Witness may be asked whether he would act upon certain signatures if they came to him in an ordinary business transaction. Holmes v. Goldsmith, 147 U. S. 150.

QUALIFICATIONS OF WITNESSES.

A witness who was a clerk in chancery, and who testified that he had been accustomed to examine signatures, as to their being genuine, was held not to be entitled to give an opinion as a person skilled in detecting forgeries, whether a signature is genuine or imitated. People v. Spooner, 1 Den. 343.

. One who has made a special study of handwriting. Hadcock v. O’Rourke, 6 N. Y. Supp. 549.

Where the genuineness of a signature is in question in an action, experts in handwriting, who have no other knowledge of the handwriting of the person whose signature the one in question purports to be than that derived by a comparison in- court of such signatures with other signatures of the person to instruments proved and properly in evidence, are competent as witnesses to give their opinions, derived from such comparison, as to the genuineness of the disputed signatures, and as to whether it appears a natural or similated hand. Miles v. Loomis, 75 N. Y. 288.

The competency of a witness offered as an expert in handwriting is a fact necessary to be known in order to learn the value of his opinion, and while it is not an issue raised by the pleadings, it becomes a subordinate issue by the tender of the witness as an expert, and where an expert in handwriting had testified that, in his opinion, the signatures to the disputed papers were genuine, it is competent, upon his cross-examination, to submit spurious signatures to the witness, and ask him if he had not, upon a previous trial, after comparing such spurious signatures with genuine signatures in evidence, pronounced them genuine and swore that they were written by the same hand that had written the signatures proved to be genuine, since any testimony of an alleged expert upon handwriting, which bears upon his competency to express an opinion, may, within reasonable limits, be contradicted by other testimony, and the test thereby -.sought to be applied bore not only upon his competency to express an opinion, but upon" the value of his opinion when expressed, and tended to show that it was unreliable. Hoag v. Wright, 174 N. Y. 36.

A bank teller and exchange broker. Johnson v. State, 35 Ala. 370.

A bank bookkeeper. Bradford v. People, 22 Col. 157.

A bank cashier. Lyon v. Lyman, 9 Conn. 55.

A bank manager. Forgey v. Cambridge City Bk., 66 Ind. 123.

One engaged in a business which requires frequent comparison of handwriting. Ort v. Fowler, 31 Kan. 478.

A skilled witness, while not competent to state from comparison with documents, in or out of the case, whether a given handwriting is genuine, may still point out to the jury indications, other than resemblances of the handwriting, which tend circumstantially, as it were, to indicate the writer, such as differences in words or letters, or may speak of such other ■facts as appear to him from the face of the handwriting. Fee v. Taylor, 83 Ky. 259.

The treasurer and clerk of a railroad corporation, who has been accustomed to examine signatures upon transfers of stock and on bankbills in order to determine their genuineness. Withee v. Rowe, 45 Me. 571.

Photographer accustomed to exajnine handwriting in connection with his "business with a view to detecting forgeries. Marcy v. Barnes, 16 Gray (Mass.), 161.

One whose experience is limited to promissory notes, held may testify ¡as to other documents. Com. v. Williams, 105 Mass. 62.

It has been suggested that the best way to determine the qualifications of an expert witness is to submit the question to the jury. Vinton v. Peck, 14 Mich. 287.

Merchant and dealer in commercial paper. Edmonston v. Henry, 45 Mo. App. 346.

Cashier of bank and clerk of court. State v. David, 131 Mo. 380.

Register of deeds. Kornegay v. Kornegay, 117 N. C. 242; State v. DeGraff, 113 N. C. 688.

A man of business familiar with handwriting is not sufficiently qualified. Lodge v. Phipher, 11 Serg. & R. 333.

Bank tellers. Speiden v. State, 3 Tex. App. 156.

Bank president. Bratt v. State, 38 Tex. Crim. 121.

Bookkeeper and cashier of mercantile firm of large volume of business. State v. Ward, 39 Vt. 225.

Mere skill in the use of a microscope held not to be a sufficient qualification. Stevenson v. Gunning, 64 Vt. 601.

One handling bank-bills. U. S. v. Holtsclaw, 26 Fed. Cas. 15,384.

A person is not qualified to act as an expert witness by having merely been engaged in collecting the evidence in the cause. U. S. v. Mathias, 36 Fed. 892.

Where a witness swears that he has seen defendant write his name and that to the best of his judgment the signature shown is his, but on cross-examination says that he has not seen him write enough to base any opinion, but had compared it with signatures which he supposed, but did not known to be genuine signatures, it is error to refuse to strike out his testimony. People v. Collins, 15 N. Y. Crim. 305.

COMPARISON OP SPECIMENS.

Term not used in broad sense, but rather in technical sense, “ comparison of handwriting ” being defined as “ a comparison by the juxtaposition of two writings,” in order, by such comparison, to ascertain whether both were written by the same person. A method of proof resorted to where the genuineness of a written document is disputed; it consists in comparing the handwriting of the disputed paper with that of another instrument which is proved or admitted to be in the writing of the party sought to be charged, in order to infer, from their identity or similarity in this respect, that they are the work of the same hand. Black Law Dictionary.

The expert, on comparison of the genuine with the disputed writing, can merely state his inference that both were or were not written by the same person, and he cannot go further and testify positively as to who wrote the disputed one. People v. Severence, 67 Hun, 182.

Error to permit a witness for the prosecution to testify, not from knowledge of the defendant’s handwriting or from having seen him write, but from an examination and comparison of certain papers which the witness believed to be in the defendant’s handwriting, that the entry in question was in the handwriting of the accused, where the standards of comparison were not before the court, and their genuineness was not conceded or satisfactorily proved. People v. Dorthy, 50 App. Div. 44.

Where, in an action upon a written instrument, the issue is as to the genuineness of the signature thereto other papers executed by the defendant, the signatures to which are conceded to be genuine, but which are not properly in evidence for other purposes, cannot be received in evidence or submitted to the jury to enable them to compare the signatures, and thus draw a conclusion as to the genuineness of the one in question. Randolph v. Loughlin, 48 N. Y. 456.

Where instruments, signatures to which are thus compared, were, for aught that appears in the case, offered in evidence for other purposes than comparison and received without objection, it cannot be objected on appeal that they were immaterial for any other purpose, and so could not be used for comparison. Miles v. Loomis, 75 N. Y. 288.

An expert in handwriting, when speaking as a witness only from a comparison of handwriting, should have before him in court the two writings compared. Hynes v. McDermott, 82 N. Y. 41.

All evidence of handwriting, except where the witness sees the document written, is in its nature comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind derived from some previous knowledge. Doe v. Suckermore, 5 A. & E. 703.

Probably there is hardly any rule as to the introduction of evidence on which courts express a greater diversity of opinion than that relating to the proof of handwriting by comparison. Gaunt v. Harkness, 53 Kan. 405.

Witness whose qualifications are shown may, as between disputed and genuine parts of a document already in evidence, on the question of alteration, compare different parts of such instrument, and state his inference as to whether they are or are not in the same handwriting. Hawkins v. Grimes, 13 B. Mon. (Ky.) 257.

Disclaimer of skill in comparison deemed to require the rejection of the witness. Heacock v. State, 13 Tex. App. 97.

THE STANDARD OF COMPARISON.

Photographs of signatures should not be used as evidence if the original could be produced, and in no case without investigating the refractive power of the lens, the angle at which the original was inclined to the sensitive plate, the accuracy of the focusing, the skill of the operator and the general method of procedure. Taylor’s Case, 10 Abb. Pr. N. S. 300.

Fact that a paper is found among the papers of a deceased person does not establish it as a standard of comparison. Farrell v. Manhattan, 83 App. Div. 393.

Evidence in action against indorser of note, defence being that note was a forgery, as other previous indorsements, held incompetent on the question of (to) proving the handwriting of defendant. Van Wyck v. McIntosh, 14 N. Y. 439.

A comparison of a signature in dispute with photographic copies of other writings, for the purpose of getting an opinion from an expert as to the character of the signature as real or feigned, where the originals from which the copies are made are not brought before the jury and cannot be shown to other witnesses, should not be permitted, at least where there is no proof as to the manner and exactness of the photographic process used. Hynes v. McDermott, 82 N. Y. 41.

Statute only allows comparison between the disputed writing and the genuine handwriting of the person purporting to be the writer of the disputed writing, and therefore it does not allow comparison of the disputed writing with the handwriting of some other person. Peck v. Callaghan, 95 N. Y. 73.

An expert may be permitted to make illustrations upon a blackboard before the jury for the purpose of explaining his testimony and rendering it more intelligible to them. McKay v. Lasher, 121 N. Y. 476.

The disputed writing with which comparison is permitted, is any writing which one party upon the trial seeks to prove as the genuine writing of any person and which is not admitted to be such, provided such writing is not otherwise incompetent. People v. Molineaux, 168 N. Y. 264.

The genuineness of writings which, when proved to the satisfaction. of the court to be genuine, may be used as standards of comparison with a disputed writing, may be established (1) by the concession of the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) or by witnesses who saw the standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) or by witnesses whose familiarity with the handwriting of the person who is claimed to have written the standard enables them to testify to a belief as to its genuineness; (4) or by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns. People v. Molineaux, 168 N. Y. 266.

The genuine writings of a person on trial for murder by poisoning held not admissible as standards of comparison with the handwriting upon a package containing poison which he was alleged to have sent feloniously through the mail, because they were produced at the request of a handwriting expert retained by the police authorities at a time when the inquest into the circumstances of the death was in progress and while defendant was suspected, as he knew, of being the murderer, and was under subpoena to testify at the inquest, since he was not in custody and no formal charge had been made against him. People v. Molineaux, 168 N. Y. 264.

UNDER COMMON LAW.

A witness, having no previous knowledge of the handwriting, of a party, cannot be permitted to testify as to its authenticity from a mere comparison of hands in court. Wilson v. Kirkland, 5 Hill, 182.

Proof by a comparison of hands, through the juxtaposition of two writings, in order to ascertain whether both were written by the same person, is inadmissible; witnesses cannot testify from such comparisons alone, nor can the writings be submitted to the jury. Jackson v. Parker, 9 Cowen, 94.

In Pennsylvania, prior to statutory change, mere experts were not permitted to make a comparison, and then testify concerning their conclusions in regard thereto. Hockey’s Case, 145 Pa. St. 453.

Under the common law rule permitting comparison between a disputed, writing and genuine writings already properly in evidence for other purposes than comparison, it was not necessary that a disputed writing should be the subject-matter of the issue to be tried. People v. Molineaux, 168. N. Y. 266.

UNDER STATUTE.

Under the statute the submission of writings to a jury must be in connection with the testimony of expert or skilled witnesses in regard to. their validity or authorship; and in the absence of such testimony such, writings cannot be submitted to the jury for the purpose of arbitrary comparison by the jurors themselves. People v. Pickney, 67 Hun, 428.

The statute does not authorize the admission in evidence of writings-other than those of the person whose signature is in question. It is competent to give in evidence writings proved to be in the handwriting of the-person whose signature the one in question purports to be, for the purpose of enabling experts to make comparisons, and give their opinions as-to the genuineness of the signatures. Peck v. Callaghan, 95 N. Y. 73.

Effect of the statute is to permit the admission in evidence of only such-writings as have been proved to the satisfaction of the court to be in the-genuine handwriting of the person claimed to have executed the disputed' writing. People v. Corey, 148 N. Y. 476.

Parallel marks drawn through the signature are not such disputed writing as may be, within the meaning of the statute, testified to by experts.. In re Hopkins, 172 N. Y. 360.

WEIGHT OF EVIDENCE.

The genuineness of writings, which may be used for purposes of comparison with a disputed writing when proved to the satisfaction of the. court to be genuine, must in civil eases be established by a fair preponderance of the evidence, and in criminal cases beyond a reasonable doubt. People v. Molineaux, 168 N. Y. 266.  