In re the Probate of the Will of Hopkins

Bobert E. Hopkins died at Tarrytown in this . state on the 9th day of May, 1901. He was possessed of a large estate, and left him surviving Fanny W. Hopkins, his widow, and Bobert E. Hopkins, Jr., his son, of the age of thir

The finding of the will in the testator’s desk with his signature canceled raised the presumption that the cancellation was done by him with the intention of revoking it. Williams on Executors (Yol. I, p)age 85) says : “If a testament was in the custody of the testator, and up>on his death it is found among his repositories canceled or defaced, the testator himself is to be presumed to have done the act; and the law presumed that he did it animo revocandi.” In Hedfield on Wills (p. 307) it is said: “ The rule of evidence in the ecclesiastical courts, in regard to the presumptive revocations, from the absence or mutilation of the will, seems to be, that if the will is traced into the testator’s possession or custody, and is there found • mutilated in any of the modes pointed out in the statute for revocation, or is not found at all, it will be presumed the testator destroyed or mutilated it, animo

Upon the trial the presumption that the will was revoked by the testator vras sought to be overcome by showing that a previous search of the desk was made for the purpose of discovering the will, and that it was not then found ; from which the claim is made that the will must have been in the possession of some other person than the testator and that it was subsequently placed in the desk with the signature canceled. It appears that two searches of the desk were made. The first by opening the drawers and looking in, but not by carefully taking out the papers and examining them. The next day a more careful search was made, after looking through the deposit vaults. At this time the papers were taken out and examined, but the will was not found. This examination was made by Mr. Warren, who occupied a desk in the same room with the decedent, and who had been connected with him in business for twenty-five years. It was made in the presence of the widow and her brother and was concluded between one and two o’clock in the afternoon. About four o’clock the same afternoon Mr. Warren went again to the desk to do some writing, and, he says, mechanically he put his hand on the little drawer and on pulling it open saw the blue envelope, which he took out and found to contain the will. The' drawer appears to have been in little use for it contained only a few pens and an ink eraser besides the envelope containing the will. It was not shown that any person had possession of the instrument or had any motive to cancel it other than the son, who became chiefly benefited by its cancellation. It is not pretended that it was done by him, as lie was only thirteen years of age, and he ivas not shown to have been at the office of his father after his death and before the instrument was found. It is, therefore, claimed upon the part of the guardian ad litem, that the will was overlooked during the previous

This brings us to the consideration of the other evidence given on behalf of the proponent to establish that the cancellation was not done by the testator. This evidence wras given hy the witness Carvalho, an expert in inks and handwriting. He was asked the following questions : “ In your opinion, as an expert, -were those jierpendicular marks made by the same person as wrote the signature on that will?” This was objected to by the guardian ad litem, and the objection was overruled and an exception taken. He answered, “ Judging from the material at hand, the signature of the will, I say, not.” Q. “Judging from the signature It. E. Hopkins, as appears on the first page, and the signature Eoht. E. Hopkins, as it is signed opposite the seal on the instrument, have you an opinion as to whether the marks, the fourteen marks, are written by the same hand ? ” To this the guardian ad litem also objected, and the same was overruled and exception taken. lie answered, “I have an opinion.” He was then asked, “ What is that opinion ? ” Same objection, ruling and exception. He answered, “ That they were not.”

The will was drawn by a lawyer and was not in the handwriting of the testator. The signature appears upon the instrument at the end thereof, opposite the seal, and in the margin under the words “ to the effect that an erasure was made before signing it.” These signatures were written in a plain bold hand ten years before the testator’s death and were the only writings which the expert had before him with which to compare the cancellation marks. Were these marks “ writings” within the meaning of chapter 36 of the Laws of 1880 and chapter 555 of the Laws of 1888, which permit the comparison of writings by experts? The Appellate Division appears to have been of the opinion that they were. But we do not understand that such was the purpose or intent of these statutes. These enactments were considered hy this court in the case of People v. Molineux ( 168 N. Y. 264 ), in which

The chief case relied upon in support of the admissibility of the testimony of the expert is that of Lansing v. Russell ( 3 Barb. Ch. Rep. 325 ). In that case the action was brought to set aside íavo conveyances of real estate executed by 0. Lansing shortly before his death, he then being ninety years of age. The deeds were executed by his making his cross opposite the seal. The crosses Avere proved by a witness who saw the deeds executed. To rebut this the complainant produced upon the trial several witnesses, wrho Avere,cashiers of banks and experts in detecting forgeries and counterfeits, to testify that in their opinion the marks made to these deeds were not the marks of a person of the age of Mr. Lansing. The chancellor said with reference thereto, “I think the testimony of the experts, who had been in the habit of examining signatures and marks of young persons as Avell as of aged ones to prove that the marks to these deeds could not have been genuine marks of the unaided hand of. old age and decrepitude, was properly received, upon the trial, as legal evidence to establish that fact.” The testimony of these experts, however, was rendered unimportant for the reason that the witness, Avho testified to the execution of the deed stated that Mr. Lansing, in making his mark, asked his son who was standing by to steady his hand, and thereupon his

It is apparent that the case of Lansing v. Russell does not cover the question now presented. It is quite possible that an expert can determine whether a cross was made by a person in the prime of life with a steady hand, or by a person of advanced age with a feeble, trembling or shaking hand. Such testimony is not based upon the comparison of "writings but is based upon the condition of the individual, and, therefore, the case is not decisive of that which we now have under review.

An expert may doubtless be able to determine whether one mark is made over another, whether a mark is made by a trembling or steady hand, and, if familiar with inks, he may also be able to determine nearly the age or the time that the writing was made. It has also been held that the mark of an individual to an instrument may be proved by those who have seen him make his mark to other instruments where the mark contains some peculiarity which they have noticed and observed, thus enabling them to distinguish it from other marks. (Strong v. Brewer, 17 Ala. 706 ; Paisley v. Snipes, 2 Brev. [S. C.] 200; George v. Surrey, 1 Moody & Malkin [Eng.] 516.) But this class of evidence is dependent upon the familiarity of the witnesses with the peculiarities of the persons making the cross, and is not the subject of the opinion of experts whose only knowledge or familiarity of writings is obtained by comparison.

In the case of Jackson v. Van Dusen ( 5 Johns. Rep. 144 -155), Yah Hess, J.; in delivering the opinion of the court, says: “ The testator having made his mark, no evidence of course could be given or expected to prove his handwriting.” In that case, one of the witnesses to the will, Samuel Wheeler, signed the same by making his initials, “ S. W.” The signing

In the case of Gilliam v. Parkinson (1 Rand. [Va.] 325), Carr, J., says: “ In the case now before us, the attesting witness has made his mark. How I ask, how could this be proved ? There is a distinct individual character in the writing of every .man who can write; and with those who have written much, that character is so fixed and striking that persons acquainted with it will find no more difficulty in recognizing it than in knowing the face of the writer. Where the name of a witness is written by himself, therefore, it may generally be proved with something like certainty. But here, there is no writing. The name of the witness is written by another, and he makes

In the case of Jones v. Hough ( 77 Ala. 437 ) the remarks of the judge in Gilliam v. Parkinson are quoted with approval, as is also the case of Watts v. Kilburn ( 7 Ga. 356 ), in which it is said that “where the name of a person is written by another and he makes a cross mark, there is nothing distinctive to fix its identity.” In Travers v. Snyder ( 38 Ill. App. 382 ) the question was whether there can be a comparison between cross marks or a mere mark and another. With reference thereto the court said : “ How can simply a mark be recognized as that of any particular person without any proof of any particular characteristic by which it can be distinguished ? It seems to us that it would be very unsafe, and lead to dangerous results to allow such comparison to be made and taken as evidence, unless, at least, some proof was made that the mark had some established characteristics like a handwriting that would enable it to be recognized. A mere cross or mark cannot be identified, and it, therefore, stands for itself alone.”

In the early period of the English law expert testimony was unknown, but, as the world advanced in education, the courts commenced to avail themselves of the knowledge of others pertaining to scientific matters which was not possessed by ordinary individuals. From this beginning expert testimony has continued to grow in importance and in use until the present time. It, however, has met with much criticism on the part of the courts, and it has been denounced as misleading and unsatisfactory in numerous cases. It is, however, useful in a variety of cases and within reasonable bounds should be encouraged. But we have now reached a case where it is sought to establish that mere marks made over the signature were not made by the person who wrote the signature, by the opinion of an expert. This is carrying the use of the opinions of experts beyond any reported case to which our attention has been called, and we now think

The general rule which admits of the proof of the hand-writings of a party by experts, who have compared the writing with other writings of the person, is founded on the reason that in every person’s writings there is a peculiar prevailing characteristic which distinguishes it from the handwritings of every other person, and, therefore, an expert, by studying characteristics as they appear in the waitings of the person, may be able to determine with some degree of certainty as to whether a writing sought to be proved contains any of the characteristics of that of which he has examined and studied. But mere perpendicular marks, or scratches, used either perpendicularly or horizontally over a signature for the purpose of canceling it, do not contain the characteristics necessary in the formation of letters to enable an expert, or any person, to speak with any degree of certainty with reference to the identity of the person who made the marks.

In the case before us it is quite probable that the signature was canceled by the perpendicular marks ten years or there-' abouts after the signature was written. The expert concedes this in giving the age of the ink marks over the signature, and yet, looking at the letters forming the signature made ten years before, he was allowed to give his opinion to the effect that the ' marks were not made by the same person who wrote the signature. This, we think, is carrying the privileges of an expert too far, and that the testimony is too dangerous and uncertain to be received as evidence and considered by either the court or jury.

The judgment of the Appellate Division and the decree of the Surrogate’s Court should be reversed, and the proceedings remitted to Westchester county for a trial before a jury in the Supreme Court to determine whether the wall in question was revoked by the testator, costs in all of the courts to abide the final award of costs.

Parker, Oh. J., O’Brien, Bartlett’, Vann, Cullen and Werner, JJ., concur.

Judgment reversed, etc.