Mortimer v. Chambers

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

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

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

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.