In re the Probate of the Last Will & Testament of Burtis

The death of Albert Q-. Burtis, late of the town of Fleming of this county, which occurred in the spring of 1903, has been followed by litigation, in this proceeding for the probate of his alleged last will and testament which, I believe, stands unique in the history of cases of like character, at least in this State, not only as to the intensity of the contest which has been waged, but also as to the peculiarity of the features and questions presented.

Mr. Burtis died the owner of a large estate, consisting of real and personal property approximating $250,000 in value. At the time of his death, and for a number of years prior thereto, he lived at his country home bordering on the shores of Owasco lake and known as Springside, and which, as the proof shows, has been the scene of many wine and dinner parties, and while in some respects living a life of seclusion, yet he seemed to take pleasure in entertaining his

The proponent in this proceeding, Miss Elizabeth 0. Burgess, is a young woman about twenty-two years of age, sustaining no blood relation whatever to the deceased and lives with her mother, Mrs. Sarah J. Bell, in the city of Auburn, FT. Y. Shortly after Mr. Burtis’s death through her counsel, Miss Burgess presented a petition for the probate of an instrument in writing purporting to be a will of the deceased in and by which she was made the sole beneficiary of the estate and property of Mr. Burtis and appointed the sole executrix therein. The witnesses to the will are Mrs. Sarah J. Bell, the mother of the proponent, and Mr. John Marshall, who had the management of the decedent’s farm property at Springside. The deceased’s father and brother appeared by counsel upon the return of the citation issued in the proceeding and the "witnesses to the alleged will were cross-examined at great length. An answer to the petition for probate was subsequently filed, containing the usual allegation of undue influence, incompetency, etc., and including the

The proponent vigorously contends that the signature is genuine and stands broadly on the proposition that the circumstances in the case support her position, pointing chiefly to the fact that the body of the will is in the decedent’s own handwriting; to the evidence tending to show that the decedent had great affection for her (in fact that she was his fiancee); to the proof of testamentary declarations by the decedent in her favor; to the fact that in harmony with this testamentary purpose he had deposited securities in his safety deposit box inclosed in an envelope addressed to her; and to another instrument dated October 23, 1901, in the decedent’s handwriting, purporting to be a will in her favor and which is witnessed by Mrs. Bell and Mrs. Helen B. Atkins, a sister of proponent, all of which, if unshaken, tend to make proponent’s case strong.

The theory of the contestants is that both wills (the one offered for probate and the earlier will of October 23, 1901), are the product of a conspiracy to acquire the Burtis estate, xin which the proponent and her mother were the chief actors. It is claimed that the proponent, taking advantage of the close and peculiar intimacy in which she lived with the decedent for several years prior to his death, aided and inspired by her mother as the prime instigator, prevailed upon the decedent to draw, first the will of October 23, 1901, and afterward the will of May 26, 1902, while in a state of partial intoxication. Neither instrument, it is alleged, was ever executed by the decedent, but both were obtained by proponent and fraudulently completed into the semblance of valid wills, the one by a fictitious attestation by subscribing witnesses, the other by a forgery of decedent’s signature.

The contestants depend largely upon their evidence bearing upon the question of handwriting in support of their case, and it is evidence of this character which makes up a large part of the testimony.

Much has been said and written concerning the value of expert evidence, and there is a disposition to belittle the utility of evidence of this character. Of course, in cases where the handwriting or signature of a person, since deceased, is attacked as a forgery, the party defending it is apt to ridicule the value of expert evidence, because, almost invariably, evidence of this character is the only kind available to the party attacking the signature. He often has no other means at hand to show to the court or jury that -the signature may be or is a forgery; while on the other hand the party defending the signature usually has the aid of one or more witnesses to testify to the fact of the signing, etc. If the court were to adopt the view that expert evidence is of little value and disregard it, the party attacking the signature ordinarily would have but little chance of success,

In the case at. bar, however, there stands out a piece of

In the Parish will case, 25 N. Y. 9 , the court quotes from the opinion of Lord Brougham in the case of Panton v. Williams, 2 Curt. Ecc. 530. In the English case the will was contested on the ground of forgery. The prerogative court admitted the will to probate “ with great doubt and difficulty ” because, as the court said, the witnesses were “ consistent throughout and adhered to the story originally told.” On appeal this decision was reversed, where it was said that the mind of the court, must not be left in doubt, that no duty was cast on the court to strain after probate, that inconsistencies in contestant’s case were much less material than inconsistencies in the proponent’s case, and that grave suspicion rested upon the material parts' of the casein the Parish will case, the court further says (at p. 34): “ It seems to us that these cases fully establish the following-propositions

“ 1. That in all cases the party propounding the will is

bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory.

“ 2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the wiH * * * .

“3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled fo probate * * *-

“ 5. That it is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved, and great difficulties oppose themselves to so doing.

“ 6. That the heirs of a deceased person can rest securely upon the statutes of descent and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory.” This doctrine was again applied in Tarrant v. Ware, 25 N. Y. 425 .

The fact that the body of the will is in the decedent’s own handwriting affords no presumption that he signed the will. The Legislature has thrown such safeguards around making and executing a will that, no matter what may have been the early English rule, it is now required that the testator shall subscribe his name in the presence of at least two witnesses or acknowledge the signature to them, and, the proponent must prove this fact even though the instrument is all in the testator’s own handwriting. The fact that the body of the will is in the decedent’s handwriting is useful in several respects after the due execution of the will is established; but it is not proof in any way of due execution.

Turning now to the disputed signature wo find on inspec

A vast amount of expert evidence has been adduced in' this case bearing upon the disputed signature. The signature has been subjected to a most searching examination and analysis by witnesses called for that purpose; all of the tests known in this line of investigation have been applied, and an exhaustive exposition of every feature of the signature, however minute or apparently insignificant, has been submitted to the court.

An injustice might, perhaps, be done to predicate a forgery upon this class of evidence alone; and in this connection I have, with careful attention, read the opinion of the learned surrogate of Hew York county in the Taylor will case, 10 Abb. Pr. (H. S.) 300, discussing the value of evidence of this

The Rice will was contested in the ETew York County Surrogate’s Court on the ground of forgery. The name of the decedent, William Rice, had been signed at the bottom of each of the four pages, and the will was denied probate on the ground that the signatures were tracings from an original. The Appellate Division, in sustaining the decision of the surrogate, comments upon the evidence on this point as follows: “ It may not, however, be out of place to' call attention to one piece of evidence bearing on this subject. The name of William M. Rice appears four times upon the alleged will of 1900, and upon a critical examination of these

The same rule is applied in cases where the coincidence is between a single signature and the model from which it was drawn. Hunt v. Lawless, 7 Abb. N. C. 113 ; affd., 15 J. & S. 540; Abb. Tr. Brief (2d ed.), 406; Rog. Exp. Test. (2d ed.) 292; Matter of Koch, 33 Misc. Rep. 153 ; 102 N. Y. St. Repr. 375 .

Such a doctrine is not at all unreasonable; on the contrary, it is strictly in conformity with human experience. It is a common occurrence in the speech of people to hear the expression that “ nobody ever writes twice alike.”. And that belief, has become so well established that when we find a genuine signature which coincides with the disputed signature there is but one inference to be drawn, namely, that the one is a tracing from the other. In the Rice case the court did not have before it the original model from which the signatures were traced, and came to the conclusion, .that the four signatures were traced from some unknown genuine signature, from the fact that they all practically coincided. In the case at bar, however, we have the model before us,

Another point, also apparent from inspection, and which is strongly suggestive in this connection, is the fact that the signature has the appearance of being tilted up to the left, as though made from a copy which was not laid straight on the printed line. In other words, the signature starts in at a point somewhat above the printed line and then follows an imaginary line which gradually approaches the printed line until they meet at or near the end of the signature.

Coupled with this physical evidence furnished by the will itself is the significant fact that fifteen out of seventeen friends and acquaintances of the decedent who were familiar with his handwriting, and who were called as witnesses on both sides, have testified that they believed the signature a forgery. These witnesses include the various bank officers where decedent was a depositor, his personal counsel and real estate representatives in Hew York city, and his personal friends and acquaintances who had been his correspondents. The evidence of this class of witnesses is ordinarily more convincing than the other opinion evidence in the case. These witnesses testified from a knowledge acquired by familiarity with the decedent’s handwriting, and, therefore, stand on a different footing from the expert witnesses.

The evidence offered by proponent in defense of the signature does not overcome or explain this convincing proof of simulation. Indeed, it may be said of that evidence, as a whole, that it contains much that is confirmatory of the contestants’ theory. Every one of proponent’s professional experts has, I believe, used language indicating that he found difficulties in the signature — while counsel himself felt constrained to admit in his opening that it was not claimed that the signature is free from peculiarities that attract attention and may be suspicious.

Proponent’s expert Hamilton devoted several months to the examination of the unusual features in the signature, before reaching an explanation of them satisfactory to himself. He finally settled down upon the theory, and attempted to prove in explanation of the unnatural appearance and quality of the signature, that it was impossible to produce it except with a particular pen (found in the Bell household), having one broken nib, moving slowly, at a specified angle, over a surface having the precise number of corrugations appearing upon a certain book cover (also produced from the Bell household), and by the use of an impure and viscid ink (similar to an ink found in the same house).

In passing, I may say that the Hamilton theory of the production of the signature does not seem to me natural or reasonable. I think an inspection of the signature disproves the theory of a pen with a broken nib, as the tracks made by the separate nibs are.both plainly visible in many of the downward strokes. If all the lines, running in the same direction in the disputed signature, contained wavers of the same size and character, there would be more reason in the suggestion that the name was written over a book with a corrugated cover; but there appear wavers in certain lines (which may, perhaps, correspond in measurement to the book corrugations), while in other lines, running iu exactly the same direction and indicating the same weight of stroke, such wavers are either entirely absent or are of different proportions.

The testimony of the bank clerks and officials who are unfamiliar with decedent’s handwriting, called by proponent to testify to the genuineness of the signature, is of little or no value. Their testimony consists practically of a bare expression of opinion and no more. As before observed the opinion of witnesses testifying as experts unless supported by intelligent reasons is of little weight.

Proponent has also put in evidence the results of an investigation and search, by her leading expert, through about 1,400 genuine signatures of the decedent, in evidence, for features in those genuine signatures which are similar to features appearing in the disputed signature, with a view of showing that the disputed signature contains the usual number of decedent’s handwriting characteristics. The result of this work has been classified under different headings and appears in the shape of a great mass of figures, table, charts, etc., the purport of which is to show that the disputed signature contains more features or characteristics of the decedent than any other signature he ever wrote. I cannot see that this method of investigation is of the slightest value. If the signature is a forgery, it must go without saying that it will be very apt to contain many features which resemble closely the decedent’s habits of writing, because the forger is endeavoring to simulate as nearly as possible the decedent’s genuine handwriting, and it would be strange, indeed, if he did not successfully produce many of the decedent’s characteristics, depending more or less, of course, upon his skill. These tables and charts, pointing out the instances in which certain features in the disputed signature correspond with features in the genuine, are useful only in determining that the copyist was more or less skillful and this must be specially true in a case of tracing. Moreover these tables are shown to be so inaccurate, both in classifi

The serration theory, also advanced by proponent, is a method of assuming to identify a person’s handwriting by the number of minute abrasions, called serrations, which appear on the edges of the lines. This theory is of such doubtful utility that even its author has not full confidence in it, and it needs no extended discussion.

In the body of the will appear the words, “ I give,” interlined in the decedent’s handwriting, and proponent has shown " that these two words, the disputed signature and the signatures of the witnesses, Sarah J. Bell and John ¡Marshall, are written with the same kind of ink, namely, logwood ink, while the rest of the will is written with another kind of ink called iron ink.

It is urged that, inasmuch as these interlined words, “ I give,” concededly in decedent’s handwriting, and the disputed signature, are all in the same kind of ink and different from the body of the will, the inference is that the decedent wrote this interlineation while at Mrs. Bell’s house, where it is claimed the will was signed by decedent and subscribed by the witnesses, and, the disputed signature being written with the same kind of ink, that the further inference would follow that he wrote that signature. There would be force to this suggestion, perhaps, if it were not for the fact that the interlined words, “ I give,” are plainly in the decedent’s handwriting, in his usual free, careless style, and are free from the halting, wavering lines that appear in the disputed signature, and are lighter and finer than the lines in the disputed signature. It appears improbable that the same hand wrote the two writings, their difference in quality and character being apparent upon inspection. It also appears that decedent had both kinds of ink at his house. Mrs. Bell also testified that the will was' all drawn and filled in when it is alleged the decedent came to her house to execute it. There is, therefore, nothing in the evidence to support proponent’s theory regarding the interlined words.

Upon the evidence thus far considered I see no escape

The coincidence between the two signatures in all matters of substance is well shown in the composite photograph, exhibit 177, and is nowhere denied. Indeed, proponent has, herself, given in evidence a series of measurements which satisfactorily prove the identity of the two signatures. On the other hand, it clearly appears that nothing approaching this identity is to be found in any two genuine signatures of the decedent in evidence. The significance of this identity as evidence of tracing has been pointed out by the contestant’s experts — although as I read the opinions in the Rice and Hunt cases, supra, and as common sense suggests, such evidence does not need the evidence of experts to explain it, and if the identity exists courts have uniformly held it to be evidence of forgery. Whether in a given case, it does or does not exist, is usually a fact ascertainable by the court or jury from mere inspection and comparison.

After reaching the conclusion that the signature to the will offered for probate was not made or authorized by the decedent, the discussion might naturally end here but for the fact that this will is closely connected by the evidence with an earlier paper described as the will of October 23, 1901, the history of which, because of that connection, it now becomes necessary to examine. This earlier will has been pressed upon my attention by both sides. The pro

It appears, without dispute, that during the last six years of decedent’s life the proponent made frequent visits to Springside where she often remained for weeks at a time. It appears that she frequently went back and forth at night or early in the morning, ordinarily on a bicycle or on foot. She was not introduced to the decedent’s other guests at Springside but remained in seclusion in the upper rooms of the house. In order to better conceal her identity it appears that she frequently wore male attire, and the servants, excepting, perhaps, Edward Kino, were not permitted to enter her rooms. After a time she began to assist decedent in his correspondence and in other matters requiring clerical assistance. The decedent apparently became very fond of her, and it would seem that she gradually acquired considerable influence over him. He was liberal in providing for her support and education in various ways. There is also much evidence of the purpose on his part to make substantial pecuniary provision for her in some form — although I think he was opposed to making that provision by will. It is quite clear that the proponent’s visits at. Springside were known to her mother and that they met with no objection or criticism from her. In fact, Mrs. Bell testified that she herself visited Springside upon several occasions on her daughter’s invitation. ■ From these visits, if from no other source, the conditions existing at Springside were made known to proponent’s mother. She must also have known of her daughter’s four months’ visit to Mt.

It also appears, without dispute, that the proponent’s relation to decedent and the disposition to be made by him of his- property were, from an early date, subjects of discussion between the proponent and her mother, and that this question was a matter of apparent concern to the proponent and her mother, there being numerous instances related in which this subject was discussed by them. As late as October, 1902 (five months after the date of the will offered for probate), Edward Hino testified that the proponent asked him if the decedent intended to leave his property to Mrs. Scott. Finally in May, 1903, after the death of the decedent, and before his funeral, the proponent, acting under her mother’s advice, went to Mrs. Scott and demanded of her a package of securities, which she and her mother apparently understood had been left for her by the decedent among his papers, to which it was assumed Mrs. Scott would • have access, a course which would be unlikely if the proponent already had in her possession a valid will giving her the entire estate. Hone of these conversations or transactions showing the attitude of the proponent and her mother toward the decedent is denied,'and in view of this I see no reason to doubt either the fact of their occurrence or the purpose which, they disclose, tending to corroborate the contestants’ "theory, and indicating an entire indifference, particularly on the part of proponent’s mother, to the reproach and injury which the daughter was bound to suffer in execution of this purpose.

On October 23,1901, the date of the first will, proponent’s visits to Springside had continued upward of four years. It appears that various promises of gifts had been made to her by decedent, but nothing very tangible had been done to make them effective. The package of securities already referred to,.although apparently marked with her name sometime during the year 1900, remained in decedent’s possession and under his control. Mrs. Scott was still decedent’s sole legatee under the will of August 26, 1899. A few days prior to October 23, 1901, decedent wrote to proponent, ask

The testimony of Edward Nino, if true, gives the history of the origin and production of the alleged will of October 23, 1901. He testified that on the evening of October 23, 1901, the decedent, proponent and himself were alone in the decedent’s apartments at Springside; that the decedent had been drinking and that he “ felt so good in a frolic;” that he called to Nino to bring a lamp to his table saying, “I only live another night and I want to write a few lines;” that the decedent took a pad of paper from the drawer and -drew up and signed the paper described as the will of October 23, 1901; that no other person was present during the evening and no one signed the paper as a witness at that time. This was between nine and ten o’clock. Nino further testified that soon after the paper-was finished he undressed the decedent and put him to bed, and that the paper was left lying on the table and that it was gone in the morning. He also testified that he never saw it again until it was shown him upon the witness stand at the trial, when he identified it as the paper drawn on that occasion. This instrument, when produced at the trial, bore the names of Sarah J. Bell and Helen Burgess Atkins written under the word “ Witnesses.” This evidence of Nino on this point is corroborated in several ways. First, it is evident that the decedent was on one of his sprees on that occasion, for a few days later, on October twenty-ninth, he collapsed physically, as the result of his continued drinking, and Dr. Brown was called to attend him. Secondly, the paper itself (aside from the names of the witnesses) is in conformity with the description given by Nino of the paper drawn at Springside on the night of October twenty-third. It is also conceded that the paper has been in the possession of proponent ever since its date. The two witnesses testified that on that night, “ after dark,” the decedent came to the Bell house and that they there witnessed

But beyond all this, I am constrained to believe that the evidence further shows that Helen Atkins, the other witness to this paper, was not in Auburn at or near the date of its alleged execution, but was then in Chicago, where she was living with her husband and infant child. The evidence upon this point is voluminous and conflicting, but I believe if carefully examined will remove any doubt as to the truth in the matter. It is conceded that Mrs. Atkins, who was married in June, 1900, went to Chicago to live about September 1, 1901, and that, from October nineteenth of that year until some time in April, 1902, her home was in the Wade-ford apartment-house, at Ro. 15 Elaine place in that city. It is also conceded that, in April, 1902, she returned to Auburn, where she remained several months at her mother’s house. In addition to this visit she testified that she came to Auburn about October 22, 1901, with her infant child, returning about October twenty-eighth. It was during this visit, she testified, that the first will was witnessed. A number of witnesses have testified that they saw Mrs. Atkins in Auburn at or about the time in question. Most of these witnesses, I believe, gave their testimony in good faith; but the evidence as a whole, including some very significant proof furnished by Mrs. Atkins and her husband,

It is easier to explain how such witnesses, in trying to fix the date of a casual meeting with an acquaintance, occurring eighteen months to three years before the trial, might honestly confuse October, 1901, with October, 1900, or with-April, 1902, than it is to escape certain definite and precise evidence, oral and documentary, which locates Mrs. Atkins in Chicago at the time in question. This evidence comes from four independent sources, and is of such character as to force conviction of the truth in the matter. First, Mrs. Smith, widow of the Atkins’s Chicago physician, who produced her husband’s visiting list showing almost daily visits to the Atkins family at their rooms in the Wadeford flats during the time Mrs. Atldns claimed to be in Auburn with her infant child and testified that she personally drove with her husband on some visits, and that she was present when David F. Atldns settled the account for them. Second, Mrs. McDonald, occupant of a neighboring flat in the Wade-ford building, who became acquainted with Mrs. Atkins soon after she moved in on October nineteenth, testified that she saw Mrs. Atkins almost daily until the following April; knew that Mrs. Atkins’s baby was very ill, and that the doctor was making frequent visits diking the disputed period. Third, Bessie Hancock, a young woman, maid to Mrs. McDonald, who stayed with Mrs. Atkins on two successive nights in October, 1901, when Mr. Atkins was on a business trip to Nebraska City, and who testified that the rooms were still in confusion from the recent moving, and that the child was so ill that Mrs. Atldns was up with him during most of the night. Fourth, admissions by both Mr. and Mrs. Atldns that the child was so ill in October, 1901, that Dr. Smith made “ three or four ” visits to him between October nineteenth (when they moved into the flat) and October twenty-first (the date of Mrs. Atldns’s alleged departure for Auburn), and that Mrs. McDonald’s maid did stay two successive nights with Mrs. Atkins soon after they moved into

In the evidence furnished by the Atkins should also be noticed certain entries in the expense account of David F. Atkins. Some of these entries plainly show that they have been written over erasures, and while this may not be conclusive, or might, perhaps, be explained, nevertheless, no satisfactory explanation was given, and there are other entries which show the purchase of articles, including medicine and household articles, tending to confirm the theory of the child’s illness and of Mrs. Atkins’s presence in Chicago on the dates named; a conclusion which I feel constrained to reach.

If Mrs. Atkins was in Chicago and the decedent and proponent at Springside on October 23, 1901, of course the testimony of Mrs. Bell and Mrs. Atkins concerning the execution of the will of that date at the Bell house cannot be true, and the presence of the paper itself in the case, instead of being evidence of the testator’s purpose, inveighs strongly against the proponent’s case. If this conclusion is correct, its importance to the history of the case cannot be misunderstood. It stamps the motives and conduct of the parties most interested in the will offered for probate, and prepares the mind for the conclusion, already reached by an independent process, that the signature to that instrument is a forgery. It tends to explain the origin of that instrument without intent to execute it on the part of the decedent, while the mere existence of the second will would signify that the decedent did not deem or consider that the first will was in force or effect.

Assuming the honest execution of the will of October 23, 1901, there was no reason for making, or even drafting,

With the knowledge of the type of man decedent was, it is not necessary to determine whether or not he had any notion of executing the last will. He was almost constantly under a greater or less exhilaration of drink, and the evidence shows that he was lavish, in promises, as to the disposition of portions of his property to different persons, and which promises he does not seem to have ever carried out. It may be that when the last will was written there was an indefinite purpose on the part of the decedent to execute it—a purpose which was abandoned upon later reflection. On the other hand, it may be that the decedent never intended to execute the will at all. Either view is not inconsistent with the claim of forgery. These are questions which I do not deem it material to decide. I am satisfied, first, that the signature to the will offered for probate is not genuine, and, second, that the conduct of proponent and her mother for nearly five years prior to its date indicate a plan or conspiracy of which the forgery is a natural result. Beyond that it is not necessary to go. ¡Nor have the attitude and appearance of the parties most interested tended to-allay the suspicions created by the evidence. There have been some facts in the case necessarily within the knowledge of proponent affecting her reputation and pecuniary interest; as to which she would have been competent to testify. The fact, that she has seen fit not to go upon the stand and do this, necessarily creates the unfavorable inference which the rules of law and of common sense both impute to such silence.

The appearance of proponent’s mother and sister as witnesses was not favorable to a belief of the truth of their

As to the declarations of the decedent concerning the disposition of his property, and upon which proponent places much stress, counsel for proponent has stated the rule correctly, that such declarations are of doubtful value. They cannot be accepted as controlling proof of the fact which they purport to recite. The narrative of a witness of his conversation with a person since deceased is termed in justice the weakest of all evidence. He testifies without any possibility of refutation by the person whose alleged statements he repeats. Testimony as to declarations of a deceased person should undoubtedly be disregarded upon the least conflict with the probabilities of the case. This does not necessarily imply that the witness relating the declarations is testifying falsely; but, either from lack of memory or misunderstanding, he may be giving an entirely erroneous construction to the declarations. So that when this testimony conflicts, as it does in this case, with stronger and more convincing evidence, direct or circumstantial, the court must disregard it. The testimony as to decedent’s declarations, given by the witness Fanning, well illustrates the usefulness of, this principle. This witness may have confused his own ideas, of what the decedent ought to do for the proponent, with the decedent’s various alternative plans upon that subject. Besides there seems to be some conflict between his testimony upon the stand and his version of these declarations given by him to the witness Seward. Indeed, considering those declarations as a whole, they seem to show a rather insistent purpose to provide for proponent by securities or notes rather than by will, and this view is greatly strengthened by the existence of the note for $10,000, made in February, 1903, and delivered to proponent several months after the date of the will propounded.

But these are not the only provisions which the proponent claims the decedent made for her. She also claims to hold two notes made by him, one for $1,000, dated May 12, 1899, and the other for $10,000, dated February 24, 1903, already referred to. The proponent declined to produce the notes at the trial, although requested to do so by the contestants, but she conceded the dates and amounts. It seems reasonably certain that the decedent intended to provide for the proponent by gift of stocks or notes or both. At any rate,

I have not been unmindful of the suggestion of counsel that the court should hesitate before pronouncing against the genuineness of the signature, as it would impute to some person (presumably some of the interested parties) the commission of the crime of forgery, and the task of reviewing and considering this case has been an unpleasant one in this regard because this question was necessarily foremost. But this question, like any other, must be determined in accordance with the evidence; and I think there is no possible view of that evidence which brings the proponent’s case within the decisions and statutes of this State in probate cases. Thus, in Tarrant v. Ware, supra, the Court of Appeals stated the rule as follows (although admitting the will to probate) : “ If, on examining all the witnesses, and considering the attending circumstances, a reasonable doubt remains whether one or more of the directions of the statute have not been omitted, probate must be denied, although it may be probable that the paper expresses the testator’s intention.” And in Howland v. Taylor, supra, which, like this, was a case of forgery, the same court held that “ if the proof comes short of conviction, probate must be denied.” In the latter case the decree of the Surrogate’s Court admitting the will to probate was reversed by the Court of Appeals on the ground that while the evidence was not sufficient to satisfy the court ,that the will was a forgery, it was not, on the other hand, sufficient to convince the coiirt of its genuineness.

The same principle is incorporated in our statutes: “ Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will, and the validity of its execution.” Code Civ. Pro., § 2622.

To grant a decree admitting the will to probate in this case would be a violation of this rule, in view of the conclusions which I have been compelled to draw from the

I have, perhaps, expressed my views more at length than is necessary to a decision of the case; but the questions at issue are important and complicated, the amount involved is large and the evidence voluminous and conflicting. I have given to all the evidence and the exhaustive briefs of counsel prolonged and careful study, and I can see no escape from the conclusion which I have reached.

Probate must be denied.

A decree embodying these conclusions may be entered on two days’ notice, with costs to contestants against proponent, to be taxed.

Probate denied.