Succession of McDonogh

18 La. Ann. 419

• Court: Supreme Court of Louisiana
• Decided: May 15, 1866
• Status: Published

Opinions

HtiwBin,, J.

On the 26th day of September, 1860, the plaintiff, Moses Fox, filed a petition in the Second District Court of New Orleans, and presented for probate the following instrument, to wit:

“ Oodicil to my last will and testament.

“Be it known that I, John McDonogh, do hereby will and bequeath to my beloved nephew, Moses Fox, the sum of three hundred thousand dollars, which is to be paid to him eight years after my death, by the trustees of my estate, in the city of New Orleans. Dated New Orleans, November 1st, 1849.

(Signed) John MoDonogh.”

The plaintiff alleged himself to be the legitimate nephew by blood of John McDonogh, who died on 26th October, 1860, and the identical person named in said codicil, and prayed that the cities of New Orleans and Baltimore, the residuary legatees of said deceased, be notified to be present on a day fixed; that said codicil be admitted to probate, and ordered to be executed; that he be recognized and decreed to be the nephew of said John McDonogh, and as such have judgment in solido againstthe said cities for the said sum of three hundred thousand dollars, with legal interest from 26th October, 1858, and costs.

The two cities excepted to the proceeding on the ground, that an action for the. recovery of the money cannot be merged in an application for the probate of a pretended will, and that, therefore, the order fixing a time for such purpose should be rescinded, and the case placed on the ordinary docket.

And for answer they pleaded the general denial, and charged specially that the paper sued on is a forgery. The city of Baltimore averring that it is one of a 'series of forgeries of a similar character perpetrated by a gang of forgers, whose names are unknown to the respondent, many of which have been presented.

On the 15th of January, 1861, the following document was filed, to wit:

“ Second District Court of New Orleans.

“Succession of John McD.onogh.

“On application of Moses Fox to probate will or codicil, and for judgment for $300,000, etc., under the will or codicil.

‘ ‘It is agreed by the undersigned that the case be placed on the succession docket of this Oourt, and tried in its regular order, the exceptions are thereby dismissed, and the case is to be tried on the merits under the pleadings, the question to be determined being the genuineness or forgery of the paper, which the plaintiff, Moses Fox, alleges to be a -will or codicil of John McDonogh.

(Signed) C. Roselius, for Baltimore.

C. Dueour, for Hunt and Dufour, counsel for New Orleans,

V. F. & J, B. Cotton, R. King Cutler, of counsel for Moses Fox.”

Under this agreement the parties went to trial, and after a protraoted contest and the introduction of a large mass of evidence, the lower Court rejected plaintiff’s petition, and rendered final judgment'in favor of defendants, from which plaintiff appealed.

The case has been argued in this Court with singular ability, both orally and by briefs; and we conclude from the character of the arguments as well as the terms of the above agreement, that if the instrument sued on is satisfactorily shown to be genuine, judgment must be rendered in favor of plaintiff for the amount of the bequest, and if not, the deoree of the lower Court must be affirmed.

To reach a correct conclusion, it is important at the outset to settle the legal principles which apply in such a case, and by which the evidence is to be weighed and the truth, if possible, attained.

The rules of Louisiana law, relating to the opening and proving of wills, apply to the preliminary proceedings necessary to the administration of estates, which are not conclusive upon those instituting them or the parties cited or present; so as to estop them from subsequently contesting the validity of a will, unless at the time of probate its validity was expressly put at issue. 6 A. 104; 2 A. 724; 10 A. 78; O. P. 943.

These proceedings, however, establish a prima facie case, and when attacked the burden is on the party contesting to defeat the presumption of their correctness by sufficient proof. On the other hand, if at the time of probate the genuineness of the will is denied, the party seeking its execution must produce the kind of evidence necessary to counterbalance the express denial, and establish its validity.

The law has fixed the kind and' measure of the evidence necessary to the preliminary proof of an olographic will; the testimony of two credible persons, who shall have become familiar with the handwriting of the testator by having seen Mm often write and sign; not only sign his name, but write other matter besides his name, and who shall attest, solemnly declare that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting; it must be acknowledged and proved by them; they must recognize the handwriting of the testator, and declare the whole instrument, date, body and signature to be in his handwriting. C. O. 1648.

All of which must be expressed in such terms as will satisfy the Judge that they entertain no doubt as to the genuineness of the will.

But this rule, tho observance of which is essential, does not exclude other and. cumulative or corroborating evidence; and, hence, if the probate of an olographic will be opposed as not genuine in whole or in part, both parties can resort to all the modes of proving or disproving handwriting, and Courts are not prohibited from giving due weight to circumstances, which evidence legally admitted presents.

All evidence of handwriting, except where the witness saw the document written, is presumptive and rests upon the principle of comparison, which is made in two ways : by comparing with the exemplar formed in the mind by previous knowledge, or with other writings produced on the occasion, and proven or admitted to be genuine; and at best is merely evidence of opinion, which admits of various degrees, and the weight of which is to be determined by the Court.

Under the common law the proof by comparison with other writings submitted to the witness receives but little favor, and is very much restricted in its use. In this State it is authorized by special enactment, and is adopted in aid or absence of the other mode, except when the latter is essential.

Article 2241, C. O. provides that, “if the party against whom the act under private signature is produced, disavows the signature, or the heirs or other representatives declare that they do not know it, it must be proved by witnesses or comparison, asin other cases.” And Art. 325, C. P. provides that, “ if the defendant deny the signature or contend that it is counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who had seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts, or by a comparison of the writing, as established in the Civil Code. ”

The principle recognized in the application of this rule of law is, that the express denial of a signature to a private writing, or the charge that it is counterfeited has some weight, and' imposes upon the party seeking to enforce the obligation, the burden of counterbalancing its effect by the kind of evidence prescribed. 9 L. 560-2.

The plaintiff has, in the agreement above recited, and the mode pursued in this proceeding, admitted these principles of law and undertaken to establish the reality, both as to the writing and enunciations of the instrument presented by him as a codicil to the will of John McDonogh, and charged to be a forgery, by evidence as to the handwriting, the circumstances of his possession of it, and his identity as the nephew and legatee of the alleged testator.

He introduced thirteen witnesses to prove the handwriting, five of whom declare that they have often seen the testator write and sign his name, and from their knowledge of his handwriting they express, in different terms, their belief that the document in question is the writing and signature of John McDonogh; three of these had opportunities of seeing him write until the year of his death, 1850, and the other two had not, since 1839 and 1840. These witnesses are unimpeached, and .they testify, with more or less confidence, to the genuineness of the handwriting of this important paper; and it may be said that the apparent want of entire confidence is, under the circumstances, a test of their sincerity; and, if there were no contest, their testimony might be considered sufficient; but all the circumstances, immediate and remote, are unquestionably calculated to excite strong suspicions, and cause conscientious persons ■ to speak with diffidence as to the reality of the writing, to establish which, they must themselves evince no doubt.

One of the five witnesses, who professes to have beon familiar from childhood with MeDonogh’s writing, and who examined and inventoried his private papers, expressed a fear, when he first saw the codicil, that it might be a forgery, and all of them, except perhaps one, evidently testify under a consciousness that it is subject to the charge of forgery.

The plaintiff, with a view probably to remove all doubt, introduced a witness as the person charged by the testator with the delivery of this codicil, and by his testimony the case is to be materially affected; for, if true, the genuineness of the document and the identity of the legatee are put at rest; and if not true, an important and necessary link in the chain of proof is wanting, and plaintiff has materially damaged his cause by attempting, but failing, to complete his title to so large a fortune. It is very true that he is not responsible for the veracity of the individual who may have been selected by the testator to transmit the title to him; and it is among the possibilities that such individual may be unworthy of credit, and may yet have actually received and delivered it; but he must satisfy the Court that he was so delegated; his testimony must be weighed as that of any other witness, and plaintiff’s cause must necessarily be affected favorably or unfavorably by the result of the test to which it is thus subjected. Not that it will discredit reliable witnesses, but that their testimony, not being sufficient in itself, will be unsupported and the proof incomplete.

The District Judge, before whom this witness was examined, did not believe him; and we are constrained to admit that his testimony is of such a character that we cannot say the Judge did him injustice. A careful perusal and analysis of it, under a full sense of its importance to the case, have failed to produce conviction in our minds of its correctness. He has not satisfied us that John McDonogh, an old and wealthy citizen of this parish, entrusted him, a stranger, a non-resident, a transient person, coming here occasionally as a flat-boat trader, with so important a charge. His statements are confused, inconsistent, contradictory, and present facts so improbable that it is a tax upon the most willing credulity to accept them. From his testimony we can gather that, from the fall of 1836 or 1837, when he professes to have made a casual acquaintance with both plaintiff and McDonogh, up to the spring of 1860, when he says he gave the “codicil” to plaintiff, he was in New Orleans only five or six times at the most, and never remained, at any one time, over two or three weeks, bnt generally only two or three days; and on no occasion does he seem to have had any interviews with either plaintiff or McDonogh, more than the salutations of transient acquaintances, and nothing is suggested in their respective relations to each other calculated to invite or authorize such a confidence. He does not show that he was the friend of plaintiff, or was in such position as to be a probable channel of communication between the two; on the contrary his whole history repels any such idea.

His account of the time and manner of receiving, keeping and delivering the “codicil,” instead of commanding belief, creates distrust; and the history which he gives of his residences, employments, movements, acquaintances, etc., makes it difficult to know anything about him. • He seems to have a definite knowledge of only two periods — November, 1849, the date of the “ codicil,” and March, 1860, when, as he says, he delivered it to plaintiff. He gives different statements of the length of his stay here at the former date, and different descriptions of the circumstances of the delivery at the latter. He was examined before a justice of the peace on the 4th April, 1860, and in open- Court, on the 16th and 17th January, 1861; and when, on the latter occasion, his attention was called to these discrepancies, .he refused to correct or explain thenh His testimony can have no weight with us, and plaintiff’s case is supported solely by that of the witnesses who testified to the handwriting. To counter* vail this, we have first the testimony of two witnesses, whose knowledge of the handwriting of John McDonogh is equal, if not superior, to that of any who testified in the cause, and although some of the reasons they-give, for pronouncing the paper a forgery, may not have much force, yet they declare in positive terms, and on some very good grounds, that it is not the handwriting of the deceased. Secondly, the testimony of experts and the circumstances developed in the record.

The counsel for defendants seem to have directed their efforts principally to discrediting the signature to the “codicil,” and for this purpose to rely upon the theory that it was obtained by the process of tracing. This appears to have been suggested by the production, by plaintiff himself, of a written lease from McDonogh to one Fernandez, dated 1st November, 1846, and the renewals thereof for the three succeeding years, which, it appears, was obtained from said Fernandez by plaintiff, in February or March, 1860, kept by him throe or four months, returned to Fernandez, and, after a month or two, again taken 'by plaintiff and kept by him eight or nine months, until it was" produced at the examination of said Fernandez, under a commission, on 24th April, 1861, as a witness in behalf of plaintiff, whose testimony, however, was introduced by defendants, as rebutting evidence. ■

: What object plaintiff had in procuring this lease, retaining it for so long a time, and taking the testimony of this witness, is not explained; ’and when these incidents are made the basis of a theory prejudicial to his cause, the want of any attempt at explanation is calculated to give substance to the suspicions awakened, and strengthen the defence. When considered in connection with the facility with which almost any handwriting may be successfully imitated (as shown by this record and the originals accompanying it); the sudden and unexplained appearance of the “codicil” shortly after the possession of the lease; the remarkable similarity in the size and dimensions of the signatures to the two documents, and all the attendant circumstances, so little in accordance with the usual course of human actions, the effect is unfavorable to the genuineness of the instrument propounded as a codicil.

We have before us, in the original, the “ codicil,” the act of lease and renewals, the original and a duplicate of McDonogh’s will, the codicil in favor of A. Pena and two fac-similes thereof, several specimens of accurate tracings of different signatures, and many receipts and other genuine writings of McDonogh; from a careful inspection and comparison of all which we cannot determine that the paper presented by plaintiff is in the handwriting of McDonogh; but we are sensibly struck with the uncertainty of all evidence of handwriting, except where the witnesses saw the document written, and the very great care and caution with which it should be received.

The remarkable and almost exact sameness of the size, form and position of eaoh letter, line and flourish or dash in the space occupied by the signature to the propounded codicil; and that to the lease of November 1st, 1846, obtained from Fernandez, renders it not only possible, but probable, that the former was traced from the latter. All the witnesses agree that no two genuine signatures of an individual are ever exactly alike, while some of them make it appear that the unusual similarity in this instance can be caused only by tracing. However this may be, there is demonstration before us, in the fac-similes of the “ Pena codicil” and tracings of several signatures, that imitations of handwriting, by the process of tracing, can be so accurate as to deceive at least ordinary observers, and we cannot determine whether or not plaintiff’s witnesses are deceived in their judgment of the handwriting upon which they testify.

To our own eyesight the body of the writing in question bears the appearance of an imitated handwriting, and is less like the general character of John McDonogh’s writing than the signature, and this impression is not removed by the testimony adduced in support of the document.

When we consider all the circumstances of this case, as presented in the record — the delay of nearly ten years, without a satisfactory explanation, between the death of McDonogh and the presentation of the codicil; the failure to prove plaintiff’s afleged relationship to the deceased (which, if it existed, he could certainly have shown dehors and in aid of the instrument so persistently assailed); the absence of any motive whatsoever in John McDonogh to make so large a bequest to Moses Fox; the use in the codicil of the term “trustees,” found nowhere else in the writings of the deceased, and which he is shown to have known is not recognized in our law; the inconsistency of the bequest with the sentiments and conduct of his life and the object of his remarkable testament; the existence of other documents purporting to be wills of the deceased and denounced as forgeries; the unexplained possession by plaintiff of the lease of November, 1846, followed by the mysterious appearance of the codicil, the signature to which is so correct a counterpart of the signature to said lease; the positive testimony of two' credible witnesses against, and the want of positiveness in that in favor of the instrument sued on, etc. — we do not feel authorized to reverse the judgment of the lower Court and declare the alleged will to be genuine.

Under such circumstances and the countervailing evidence, we think something more is required of plaintiff than a simple conformity to that provision of the law which directs how an olographic will shall be opened and probated. Ho has instituted suit against parties who have been for years in the quiet possession of an estate, under a will duly proven and executed, and who specially charge that the written instrument, on which his demand is founded, is a forgery, and deny that he is the person described therein.

We are of opinion that the dismissing of the exceptions, and the trial of the cause on its merits under the pleadings, devolved on plaintiff the burden of proving all the allegations material to his recovery; and that, to determine the genuineness of the paper, which he alleges to be a will or codicil of John McDonogh, the verity of its enunciations as well as the handwriting must be established. He must show that it is the will of the alleged testator, ’connect it with him, and prove that he is the legatee.

We admit in all its force the doctrine urged by his counsel, that Judges should receive the truth from the hands of the law and in the form which it has established; but it is equally their duty to be fully satisfied that what is offered in such form is really truth. It comprehends the principle which this Court is constantly applying, that a plaintiff must make his case not merely probable, but legally certain; and we see no reason why this case should be exempted from its application, but, on the contrary, the most cogent reason for strictly adhering to it.

We do not feel bound to accept a strip of paper as the will of ^ deoeased person, simply because some witnesses say that they believe it to be' in his handwriting, while others equally credible say that it is not, and while all the attending circumstances are so utterly inconsistent with its being such.

A majority of this Court do not think that the plaintiff has established with legal certainty, the genuineness of the paper which he alleges to be a will or codicil of John McDonogh.

We deem it unnecessary to pass upon the bills of exception found in the record, as they contain nothing which will make a material change in the effect of the evidence.

It is therefore ordered that the judgment of the lower Court be affirmed, with costs.

For the reasons assigned by Mr. Justice Howehd, I concur in the judgment rendered in this case.

John H. Ilseex,

Associate Justice of the Supreme Court.

Zenon Labauve.