Rufus Wheeler Peckham

“ In the course of his opinion, Lord Lyndhurst said:
'Then, as to the alleged cancelation, we think, if this be a genuine instrument, that the onus to make out the fact of the cancelation is on those who oppose the codicil. It seems that a corner had been burnt, the paper torn through, and in one place across the signature; but by whom, and under what circumstances, does not appear. There is nothing whatever to show that it was done by the testator, or if so, with what intention it was done. ”

“ If not admissible generally, it is as we think inadmissible even as merely corroborative of the evidence denying the genuine character of the handwriting. It is open to the same objection in either case as merely unsworn declarations or hearsay. ”

“ We remain of the opinion that the declarations come within no exception to the law excluding hearsay evidence upon the trial of an action, and we think the exceptions should not be enlarged to admit the evidence. Where the issue is not one in regard to the mental capacity of the alleged testator to make a will, his declarations upon the subject cannot be said to be declarations made against interest, such as declarations made by an individual while in possession of property, in disparagement of his absolute ownership. ”

“ The fact may of course be proved that the person was a man of intelligence, education, high legal attainments, refinement, and not addicted to coarseness in speech or writing, and the in ference may be sought to be drawn from the facts that the paper in question is or is not his composition and is or is not his hand-writing; but where it is material the inference is for the jury, and taking the opinion of the witness in that regard is to take his opinion upon the very subject to be decided by the jury, and is not at all a proper case for opinion evidence. ”

“ An expert in regard to handwriting is one who has become familiar with the hand writing of the individual in regard to whom the question is raised. Handwriting is a physical matter, and does not in itself represent any characteristics of the writer as to composition or general style, or as to his literary or legal attainments. ”

“ If declarations of the deceased were admissible to attack, they would then of course be admissible to sustain, the will, and there would be apt to arise a contest in regard to the number and character of conflicting declarations of the deceased which he could neither deny nor explain, and in the course of which contest great opportunities for fraud and perjury would exist. ”

“ The rule must either permit or refuse to permit the evidence. We think that more injustice is possible as a result of admitting the evidence than from its exclusion. The statutes of all the states have very careful and stringent provisions in relation to the making of wills and the due proof of their execution. The wills must be in writing (with the exception of certain nuncupative wills) signed by the testator and witnessed by others ”

“ The contestants, as next of kin, filed their caveat October 18, 1895, opposing the probate of the paper, to which answer was made and filed December 2, 1895, by Luke Devlin, the executor, and by the Misses Hynes and Throckmorton, the two legatees named in the paper.
Issues were duly made up in the orphans' court and transferred to the circuit court for trial by jury. ”

“ Pursuant to the petition and on September 28, 1894, the National Safe Deposit, Savings & Trust Company of the District was appointed administrator of the estate, and has continued so to act since that time. ”