§ 605. Forgery: Matters Not Establishing.

The fact that the body of the will is in decedent's handwriting affords no presumption that he signed the will. Such a fact is useful in several respects after the due execution of the will is established, but is not proof in any way of due execution.33 Neither does the fact that the will bore date of the 20th, while the petition of the proponent states that the testator died on the 17th of the same month, afford any presumption that the will is a forgery; the more reasonable supposition is that the petitioner was mistaken in the date of the death or that a mistake was made in dating the instrument. No inference that a will has been forged can be drawn from the fact that it is written on one side of two pieces of paper instead of on two sides of one piece when the scrivener has testified to the reason therefor.35 Nor is the fact that the testatrix signed her name to the will as "Roxa Lana" instead of "Roxalana," as she usually wrote it, any more an argument in favor of the falsity of the signature than for its genuineness. It would be most unnatural for a party seeking to commit a forgery

48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 103; Whelpley v. Loder, 1 Demarest (N. Y.) 368.

Contra: Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712, 5 S. W. 7.

33 Matter of Burtis' Will, 43 Misc. Rep. (N. Y.) 437, 89 N. Y. Supp. 441.

34 Doran v. Mullen, 78 Ill. 342. In a contest over the genuineness of a holographic will, the alleged physical incapacity of the II Com. on Wills-4

testator at the date of the instrument is a legal element of proof to be considered, as is also the mode by which the party presenting the will acquired possession of the same. The court will also consider the character of the provisions as a means of testing the validity of the will by the probabilities of the disposition of the property. Succession of Gaines, 38 La. Ann. 123.

35 Lamb v. Lippincott, 115 Mich. 611, 73 N. W. 887.

to adopt a signature unlike the genuine.36 Nor can the charge of forgery be supported by proof that the proponent and legatee had committed other independent forgeries.37

§ 606. Evidence of Forgery: Suspicious Circumstances.

In suits involving the validity of wills where forgery is charged, all legal modes of proof, including the testimony of experts, comparisons of writing, and the like, are proper, and the evidence must be given the consideration the facts warrant.38 Any evidence of suspicious actions tending to show the improbability of the genuineness of the purported will, or to disclose the motive of the party in offering it, may be received.39 The truth or falsity of matters recited in the will may be shown as bearing upon the genuineness of the instrument; as where the recitals are of the feelings of the alleged testatrix, her acts and declarations may be put in evidence to show that her feelings were not as stated in the will.40 Evidence of a former suit between the testator and a beneficiary tending to show the hostility of the former

The testimony of experts, coupled with suspicious circumstances such as the fact that the proponent, who was also the principal beneficiary, failed to explain how he happened to know of the existence of the will and the place where it could be found, held sufficient to show forgery. - Succession of Drysdale, 127 La. 890, 54 So. 138.

40 Breck v. State, 4 Ohio Cir. Ct. R. 160, 2 O. C. D. 477; Corbett v. State, 5 Ohio Cir. Ct, R. 155, 3 O. C. D. 79.

toward the latter, may be received. But the fact that the testator attempted to make a will at a date subsequent to the proposed instrument is not proper evidence to establish forgery.12

§ 607. Forgery: Declarations of Testator: Conflict of Authority.

There is a conflict of authority as to whether or not declarations of a testator made prior to the execution of his will may be put in evidence, on an issue of forgery, to show that the testator had a pre-existing testamentary scheme or design for the disposition of his property. It is argued that a will containing provisions greatly at variance with such design would show the improbability of its having been executed by the testator, and therefore such declaration should be admitted as tending to show the instrument to be a forgery. The Supreme Court of the United States, in a well-considered case which reviews many authorities, has held such evidence inadmissible. The court said there was no good ground for distinguishing between declarations made before or after the execution of the will. Some decisions argue that such declarations made prior to the will indicate an intention as to the testamentary disposition of property thereafter to be made, and are corroborative of other testimony tending to establish a forgery. If a document be forged, however, it was not executed by the testator, and if a distinction be allowed between declarations before and those after the will was made, the one committing the forgery could affix such a date to the will as to exclude declarations prior to an arbitrarily

41 Dolan v. Meehan, (Tex. Civ. App.) 80 S. W. 99. See, also, Johnson v. Brown, 51 Tex. 65.

42 Johnson v. Brown, 51 Tex. 65.

fixed period. The opinion of the court was that mental capacity not being involved, nor matters of pedigree or of revocation, evidence of the declarations of the testator were inadmissible even as merely corroborative of evidence denying the genuine character of the handwriting.48 In a subsequent case in New Jersey the above mentioned case in the Supreme Court of the United States was referred to at length, and the inferences drawn from the decisions therein referred to were questioned. In the latter case it was held that statements by a testator prior to the execution of his will were admissible, on an issue of forgery, to show a fixed and pre-existing intent as to the disposition of his property. The two cases mentioned review the leading authorities, both English and American, and they need not be herein further referred to. The better reasoning, which seems to be supported by the weight of authority, is that declarations of a testator, whether before or after the execution of his will, but close enough thereto to have a bearing, are admissible when the question of testamentary capacity is involved, likewise revocation, but not in a case involving the question as to whether or not the will was a forgery.

44

43 Throckmorton v. Holt, 180 U. S. 552, 45 L. Ed. 663, 21 Sup. Ct. 474.

As to extrinsic evidence and declarations as affecting the question of revocation, see §§ 54, 546, 548, 549.

As to parol declarations being received as part of the res gestæ, see § 53.

As to parol declarations and

surrounding circumstances for the purpose of ascertaining intent, see §§ 52, 53.

As to declarations of a testator, on the issue of mental capacity, see $$ 359-363.

44 State v. Ready, 78 N. J. L. 599, 28 L. R. A. (N. S.) 240, 75 Atl. 564. See, also, Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308.

46

45

§ 608. Declarations of Testator Not Proof of Facts Stated. Declarations of a testator made in connection with the execution of his will, when pertinent to the issue, are admissible as part of the res gesta. As proof of the fact, however, of undue influence, declarations not contemporaneous with the execution are inadmissible; they must be treated as hearsay. For example, a declaration of the testator as to the conduct of the suspected legatees toward him is inadmissible as evidence of acts constituting undue influence. And evidence was excluded of statements by the testator two years prior to death that some of his children did not treat him right.48 The fact that the testatrix, after the time that it was claimed she made the will, denied that she had made one and said she did not intend to make a will, but would leave her children to share equally in her property, is not com

47

45 Shailer v. Bumstead, 99 Mass. 112.

As to difference in effect between oral and written declarations, see § 359.

Testimony of the scrivener that the testator objected to the insertion of the name of a beneficiary is admissible as part of the res gestæ.-Nelson v. McClanahan, 55 Cal. 308.

46 Stevens V. Van Cleve, 4 Wash. C. C. 262, 265, Fed. Cas. No. 13412; Reynolds v. Adams, 90 Ill. 134, 32 Am. Rep. 15; Runkle v. Gates, 11 Ind. 95; Hayes v. West, 37 Ind. 21; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433, 438; Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771; Mooney v. Olsen, 22 Kan. 69, 76; Storer's Will, 28 Minn. 9, 8 N. W. 827; May v.

Bradlee, 127 Mass. 414; Gibson v. Gibson, 24 Mo. 227; Bush v. Bush, 87 Mo. 480; Whitman v. Morey, 63 N. H. 448, 2 Atl. 899; In re Pemberton's Will, 40 N. J. Eq. 520, 4 Atl. 770; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Cudney v. Cudney, 68 N. Y. 148; Marx v. McGlynn, 88 N. Y. 357, 374; Smith v. Keller, 205 N. Y. 39, 98 N. E. 214. See § 362.

The evidence of undue influence must be other than that which proceeds from the testator's own mouth after a will is made.-In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614.

47 Rusling v. Rusling, 36 N. J. Eq. 603.

48 Stephenson v. Stephenson, 62 Iowa 163, 17 N. W. 456.