Young's Estate

116 P. 95, 59 Or. 348, 1911 Ore. LEXIS 149

• Court: Oregon Supreme Court
• Decided: May 31, 1911
• Status: Published

Opinions

Mr. Justice McBride

delivered the opinion of the court.

We are forced to the conclusion that the alleged will is a forgery. And not only that it is a forgery, but that the letters and exhibits produced by proponent to sustain it are also forgeries. It is practically conceded, and no reasonable person can doubt, that both the alleged wills previously produced, which purported to convey the bulk of the property of deceased to proponent, were bold, impudent forgeries. It is a fair presumption that they were made in the interest and at the instigation of the person who was to profit by them. They were discovered in the possession of proponent, and there is nothing in the evidence indicating that she had any friend so interested in her welfare as to forge wills in her favor. It is true that one of them came not directly to her but to her attorney, who, as an honorable gentleman, declined to act upon it. But it would be an easy matter for proponent herself or some one in her behalf to mail it to her attorney. The wills were for her benefit. Who but she could have an interest in fabricating them. But there is direct and reliable testimony connecting her with the fabrication of the first alleged will in her favor. B. B. Hall, who was appointed administrator of Young’s estate, testifies that he made exhaustive search for papers belonging to Young and found no will, except the one first admitted to probate. He kept the papers of deceased at the bank in a private box that he had used during his lifetime and was thoroughly familiar with them, and is positive that the pretended will was not among them.

1. In April, 1906, proponent called upon him at the bank and asked for permission to look over Young’s papers. This was granted, and proponent in company with her brother, Fred Young, went with witness into the private room of the bank and the box was placed upon the table, proponent sitting on one side and witness on the other, with the box between them. While proponent was examining the contents of the box, Fred Young made some inquiry as to the location of a lot in Weston, and proponent attracted the attention of witness for a moment to a plat of the town, which hung on the wall behind him. When he turned his attention to the box again he found the envelope containing the first alleged will in favor of proponent in the box. He took it up and proponent said: “Oh, this is what I have been looking for. It is the last will of Uncle Jim. How long has it been here?” To which question witness answered, “Not to exceed a minute or two minutes, madam; just since you dropped it in there.” Hall swears that he knows that the alleged will had not been there previously, and he is a reliable and disinterested witness. The theory of proponent that Hall was hiding or suppressing the document is absurd. If he knew the box contained a will he had only to refuse to permit her to examine it or to have first removed it from the box and then allowed an examination. The conclusion is irresistible that she placed the alleged will in the box while his attention was diverted to the map. Her connection with the will sent to Carter is not so clearly shown, though the letters in the signature of J. W. Young, in all three of the alleged wills, are spaced so nearly alike that they might be superimposed one upon the other and practically coincide. It is a practical impossibility for a man to write his name three times exactly alike, and this similarity is strong evidence that all three signatures were traced from a single genuine signature. Here we have evidence connecting proponent with the fabrication of two false wills and when she produces a third, its genuineness is at least open to suspicion. The interest of proponent to forge a will and her disposition to do so are established not only by the facts above stated but by other evidence as well. Thus on November 29, 1905, she wrote as a postscript to a letter to Phelps & McCourt, who at one time had been employed by her to ascertain whether she had been legally adopted by deceased, and who had told her she was “chasing a rainbow,” the following: “Phelps, I think that rainbow I chased was quite brilliant. I will have a will for probate -that will surprise you.” This testimony was excluded on the trial as a privileged communication. But we think it was admissible, as the relation of attorney and client had terminated at the time the letter was written, and it also contained an indirect threat to commit forgery and such a communication is never privileged.

2. The proponent, having voluntarily gone upon the stand as a witness upon the general subject, waived the right in any event to object to the examination of Judge Phelps. Section 734, L. O. L. She also told Mrs. East-land that if she could not get the property one way she would another, and the testimony is abundant to indicate a disposition on her part to secure the property of deceased by any means, fair or foul.

3. We do not believe the testimony of S. V. Knox or Della Stacey. Many persons of high respectability, acquaintances and neighbors of Knox, who have had ample opportunity to become aware of his reputation, say that it is bad. It seldom happens in a court of justice that a man’s reputation is so thoroughly impeached by the testimony - of disinterested persons whose opportunities of knowledge are the very best. It is- true that some persons of respectability testify to his good reputation, but those who have known him best and longest speak otherwise, and they are greatly in the majority.

The witness Della Stacey, daughter of Louis Eagle, one of the reputed witnesses of the will in question, is also shown to be a person of bad reputation and vicious habits. It is needless to dwell in detail on her life as a girl and woman. It is such as to entirely discredit any statement • she might make on any disputed question of fact.

The will is dated November 21, 1893, and Knox testifies that he went into Young’s hardware store to buy something, and that Young called him to sign as a witness. The evidence shows that Young did not purchase the store until early in December, rendering it very unlikely that he was there in charge at the date of the supposed will. Witness Stagg testifies that he sold the business to Young early in December. The testimony of Knox is vague and uncertain in many particulars. He stated to Hall and Watts that he knew nothing that would be of benefit to either side, which, if his present testimony is true, was an absolute falsehood. It is in evidence that Young disliked Knox and warned persons to have nothing to do with him, as he was a fool and dishonest. Ragle’s name is written on the document by the same person who wrote the body of it, and what purports to be his mark appears on the instrument. He was an illiterate, unreliable drunkard. The evidence shows that Hall was constantly in the store until the spring of 1894, and it is inconceivable that Young, who was a careful, prudent business man, would have passed him by to select men, one of whom he thought dishonest and a fool, and the other a drunken sot, who could not write his own name, to witness the most important document he had ever executed. There is usually some sentiment which comes to the surface when a man sits down to execute his last will. He generally calls on his nearest and closest friends to witness his signature, and selects persons who are reliable members of the community, and whose word will be received when his own voice is silenced by death. He deposits it in the custody of some reliable person and tries to make sure that it will be preserved. But proponent would have us believe that James W. Young did none of these things. In the light of the evidence we would be compelled, in order to sustain this document, to believe that, disregarding the care and attention that he devoted to the preparation of his first will — the one drawn up by Parkes — he chose to write his own will with a pencil, upon a scrap of paper, and call in two of the most worthless characters in the community to witness it; and this in the face of the fact that the will regularly drawn up by Parkes was then in existence; that he deposited this document with some unknown person who had not the decency to declare its existence or to disclose his own name; that he made no mention of his prior will and did not destroy it, and told none of his intimate friends that he had made a second will. In view of his careful business habits this is incredible. Della Stacey’s account of the execution of the will is full of improbabilities. She testifies that she, her father, Norman Young, Knox, and J. W. Young were in the store of J. W. Young at Weston; that she was then about seventeen years of age; that Young called her father and Knox to witness on paper and when they asked him what it was he said, “Well, if you must know, it is my will”; that he then signed the paper and handed it to Knox who signed it; that Young then wrote something and handed it to Ragle who made his mark; that Young then folded it, put it in a black pocketbook and placed the book in his inside coat pocket. She carefully described the size and color of the pocketbook, which corresponds very closely with the. one which proponent claims to have received with the alleged will when it came to her through the mail. Witness testifies that she was standing about 12 feet from Young when all this took place, and yet she remembers distinctly everything that was said and all that was done after a lapse of 16 years. That a girl of seventeen years, with no particular reason for noticing or being interested in the transaction, should attend to and remember all these details is not probable. It is absolutely certain that she was not in Weston on the 21st day of November, 1893, the date of the will. She was a witness in a criminal case in La Grande, 45 miles away, on the 20th. After this cause arose, and-it was known that she would be a witness, it came to her knowledge that a detective was in La Grande looking up her record, and it would have been dangerous for her to swear that she was in Weston on the 21st, so she fixes a later date. Though she went by another route, she reached home as soon as possible, by claiming that she rode across the country on horseback. But she was not there on the 21st, so that to sustain her story it must be assumed that the‘date of the will is incorrect. The very last thing that a man is likely to date incorrectly is his will. She was an old-time friend of proponent, and just the sort of a person she would naturally select to aid her in a scheme to manufacture evidence to fit her contention. The evidence does not show proponent’s course of life to have been such as to entitle her to much credit as a witness. An associate and intimate friend of Della Stacey in girlhood, and after her marriage living apart from her husband and children, wandering around over the country with itinerant vaudeville shows, where she was engaged in “singing and dancing, rag dancing, Spanish dancing, Scottish dancing, and buck and wing dancing,” she does not present an attractive picture of American motherhood and womanhood. There is some evidence tending to show that, during her early girlhood, deceased entertained a strong affection for her, but that later, probably from her own misconduct and disregard of his wishes, and possibly from a mere whim, this regard changed to indifference or positive dislike. Grace Rogers testifies that “Young was sulky with her, and I have every reason to believe his dissatisfaction was about her association with Della Ragle.” The same witness also testified that in the fall of 1893 Young referred to Mabel and her mother as that “damned outfit,” and said that after she left she had stolen his ring, and that when he met her afterwards in Pendleton he refused to shake hands with her. She went away with her mother in the fall of 1893, and the mother subsequently sued Young for $62 as wages for Mabel while she was with him. Referring to this action in a conversation with Mrs. Meiners, he said, “The devil would get mad. I thought I was done with them people, but they have sued me again for wages.” To Mrs. Phillips he said that this was the last he ever intended to do, and he hoped he was through with the accursed family. It is worthy of notice that the will now in question bears date of November 21, 1893, the very day this suit for wages was settled in Pendleton. It seems very improbable that deceased would select this very time to write a will in favor of proponent, and it is quite probable from the testimony that he was in Pendleton on that date, settling what he deemed an unjust action brought against him in proponent’s behalf.

The will itself, and the letters and exhibits presented by proponent for comparison, while fairly skillful imitations of the handwriting of deceased, differ from it in many important particulars. Deceased was a poor penman and worse in his orthography, and while a fairly good business man was evidently a man of little education. In many instances, upon his books and checks, the name of I. H. Saling appears and he invariably spelled it incorrectly “Sailing.” In the supposed will it is correctly spelled. It is hardly probable that he deviated in this one single instance from his invariable habit, both before and after, of spelling the name. Deceased had also an almost unchangeable habit of makthe stem being made first and the upper turn being completed by a separate stroke of the pen, and always touching or projecting beyond and to the right of the top of the stem. In several score of instances, occurring in his genuine writings, there appears only one where this manner of making the letter has not been followed. In the proposed will and alleged letters to Clara Young, and proponent, and in the memoranda in the pocketbpok the prevailing type of capital “I” when viewed under a microscope appears approximately thus “” or “ ^,” the glass revealing a distinct space between the stem and the upper turn of the letter. In his true writings he had a characteristic and very unusual way of making a capital “N,” thus ,” the upper turn and downward stroke at the last never being omitted. In the supposed will and in the letters and memoranda above alluded to the capital .is made approximately thus ” showing a fairly well made standard capital “N” not seen in any of his other writings and with the upper turn and. shading .at the end of the letter entirely omitted. Another common characteristic in his writing was when writing words containing ^“th” he would cross both the “t” and the “h,” thus “ Mv” or “ /W-T.” In the alleged will and other documents referred to- these letters are crossed approximately thus, or “ or “ÁJ^” ing .a capital “I” approximately the “t” itself not being crossed. In the letters before referred to the words “letter” and “better” are properly spelled, and in other genuine letters they are misspelled “leter” and “beter.”

There are many other marked differences between these exhibits and his genuine writings, but it is useless to prolong this opinion by citing examples. There is a marked resemblance in these documents in some respects to the genuine writings of deceased, but such resemblance is the essence of every forgery. The imitation is clever, but that is all. It is a fact known to everybody that the handwriting and spelling of an uneducated man does not vary greatly. What he has learned with difficulty and does with difficulty he usually does in the same manner every time. Unlike the skillful penman he is unable to make the same letter several times in different ways, and unlike the educated man he does not correct his mistakes in spelling. And if the differences between the genuine writings of deceased and those relied upon by proponent were the only evidence in this case, they would be sufficient to stamp all these documents as forgeries. But they do not stand alone. Witnesses of the highest respectability, who are familiar with Young’s handwriting — clerks, bankers, and public officials — testify that proponent’s exhibits are forgeries. Experts of long experience bear the same testimony, the preponderance in the weight of evidence of this character being largely in favor of contestants.

Proponent also raised the question that the will drawn by Parkes is a forgery and that the signature of deceased thereon is a tracing. An expert, called by proponent, promptly declared the signature a tracing. We have carefully examined the signature under a microscope and there is little doubt that a pen with different colored ink has been run over the original letters in the name of Young. So that notwithstanding the respectability of the witnesses to the will and their apparently straightforward testimony, if it had been shown that the will when presented for probate was in the same condition that it now appears there would be a strong presumption against its genuineness. But it is shown that the will has not been always in the custody of the clerk, and that it has been taken out of the office for the purpose of examination and that proponent has had access to it. The theory of contestant is that the signature has been tampered with since the commencement of these proceedings with a view to casting a doubt upon its validity.

Charles Marsh, who knew Young’s handwriting and is himself an expert in handwriting,, testifies that the signature had apparently been changed after he first examined it. Hon. John McCourt, United States district attorney, Judge Fee, Judge Lowell, Frederick Steiwer, Frank Saling, county clerk, and Joseph Parkes, all of whom had had occasions to examine the will carefully, some of them examining it through a magnifying glass, all testify that the signature has apparently been tampered with since the institution of these proceedings and since they first examined it, and the preponderance of testimony indicates that such is the fact, and we so find.

We are of the opinion that the will drawn by Parkes is the genuine will of James W. Young. Much more might be added in support of the views here announced, but as no disputed questions of law arise, we refrain from incumbering the reports of this State with a longer discussion of facts. The case is an unique one, and, in our judgment, a daring conspiracy to defraud and loot the estate of J. W. Young by means of forged documents, supported by perjured testimony.

4. A motion to dismiss the appeal in this case is filed for the reason that Caroline Phillips died prior to the appeal, and that there has been no substitution and no notice of appeal served upon the representatives of her estate. The statute of this State provides that “any party to a judgment or decree * * may appeal therefrom,” etc. Section 549, L. O. L. “The party desiring to appeal may cause a notice, signed by himself or attorney to be served on such adverse party or parties as have appeared in the action. * * Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the Supreme or circuit court as the case may be, from the judgment, order, or decree, or some specified part thereof.” Section 550. By “adverse party” we think the statute means an adverse party on the record. All the contestants appeared together by the same attorneys and for the same purpose and their interests are identical and not adverse. The decree was against all the defendants, including Mrs. Phillips, and went to the status of a particular instrument, to wit, the will. The allowance of costs is incidental to the decision on the principal subject —the validity of the will. Proponent saw fit to take a decree against all the contesting parties after the death of Caroline Phillips and without substitution, but the decree is an entirety. If the proposed will is void, it is entirely void. It cannot be valid as to Caroline Phillips and void as to the other contestants. The probate court cannot permit administration on it as to her and refuse to permit administration as to the other contestants. Its only course is to refuse to have anything to do with it. Any one of the contestants might have appealed this suit and a victory for him would have resulted in a reversal of the decree of the court below, declaring the will a valid instrument, and when that decree is obtained the judgment for costs will fall with it.

The decree of the circuit court is reversed and the contestants who have appealed will have a decree in their favor for the costs in this court and the circuit court.

Reversed.

Mr. Justice Bean took no part in this decision.