Johnson v. Hicks.

when he made the alleged declaration, it vested no estate in the devisees and legatees named therein, and was subject to his revocation.

In the cases cited and relied upon by the counsel for the appellants, it will appear that the rulings are based upon this principle: (Waring v. Warren, 1 John, 340; Paige v. Cagwin, 7 Hill, 361; Smith v. Webb, 1 Barb., 231; Booth v. Swezey, 4 Selden, 276; Brown v. Mailler, 2 Kern., 118; Keator v. Dimmick, 46 Barb., 158; Hunter v. Hunter, 19 Barb., 634.)

In Waterman v. Whitney (11 N. Y., 161), it was held that the declarations of the testator, before or after the execution of the will, cannot be given in evidence to impeach the same, unless it be to show the mental incapacity of the testator, and they will be rejected for the purpose of proving fraud, duress, imposition, or other like cause. If the respondents would be prohibited from proving the declarations of the testator, that he never had made a will, I do not see how the appellants can prove his declarations, that he had.

The statute of this State requires wills to be executed with great solemnity and formality, and in full compliance with its provisions, and the declarations of the testator cannot be given to uphold or destroy their validity unless made at the time of the execution, so as to become part of the res gesta. (Jackson v. Betts, 6 Cow., 377.) We are, therefore, of the opinion that the offer was properly excluded.

Isaac B. Luce was called as a witness for the respondents, and testified that he had seen Mason Hicks write many times, and had been Hicks' tenant. Papers were shown the witness, and he said they were the leases he received from Hicks, and that he saw him sign the endorsement. He then testified, that he did not think it was Hicks' signature to the will.

Afterward Albert J. Kendall was called as a witness by the contestants, and it appeared from his examination, that he had great experience in scrutinizing signatures, and detecting forgeries, and was well entitled to be called an

Johnson v. Hicks.

expert in such matters. He was then shown the Hicks will, and asked the following question: What is your opinion, as to whether the signature of "Mason Hicks" is a simulated signature? The appellant's counsel objected, and the court received the answer, which is: It is my opinion, that “Mason Hicks," is a simulated signature. The signature of Mason Hicks to the lease, and the endorsement thereon, proved by the witness, Isaac B. Luce, were shown this witness, and the following question asked: Do you discover, in any of these signatures any of the painting, or retouching, which appears in the signature of Mason Hicks to the will? Under an objection by the appellants, that the inquiry was incomp tent and immaterial, the question was allowed, and the wic ness answered: "I see no marks of retouching on any of these signatures or endorsements." The witness had previ ously, in his evidence, fully described to the jury the appearance of Mason Hicks' signature to the will, giving the formation of the letters, the indications existing, that the words had been retouched or painted; that the lines of the letters were broken, and fully and minutely describing the formation and peculiarities of the letters in the signature. The witness had never seen Mason Hicks write, and was not familiar with his signature by other means.

The latter question called for the opinion of the witness, whether the signature of Hicks to the will was genuine or not, by comparison with the signatures attached to the papers exhibited to the witness, Luce. In this State, the opinions of experts are not received to prove the genuineness of the signature in controversy by comparison of hands, unless the signature produced is attached to papers in evidence, and material to the issue, or admitted to be genuine. (1 Greenleaf, §§ 576, 577, 578; Jackson v. Phillips, 9 Cow., 94; Wilson v. Kirkland, 5 Hill, 182; People v. Spooner, 1 Denio, 343; Dubois v. Baker, 30 N. Y. R., 355.) The leases were not offered in evidence by the respondents, who produced them to the witness, Luce, and no opportunity afforded the appellants to object to the same; and, if offered

Johnson v. Hicks.

in evidence, it is not sure that they would have been pertinent.

The question, in effect, asked for the opinion of the witness. It was placing the signature in controversy in juxtaposition with the one assumed to be given, and not yet exhibited to the jury, and asking the witness if there was a difference in them, and, in addition, suggesting the dissimilarity. The witness answers that there is a difference, that he sees no marks of retouching in any of the signatures or endorsements. Is this anything but an effort to disprove the signature to the will, by a comparison of handwriting? To my mind, it is too plain to need argument or illustration.

The counsel for the respondents cites 30 N. Y., page 355, Dubois v. Baker, as an authority for permitting this evidence. There it was admitted that the signature to the note in controversy was genuine, and the claim set up that the body of the note was fraudulently written over the same by the defendant, the holder, and it was admitted that the same was in his handwriting. The witness, a cashier of a bank, and familiar with holder's handwriting, produced five papers, the checks and receipts of the defendant, and he was asked to state in what respect the character of the handwriting of the note in dispute differed from the receipts and notes shown him, for the purpose of showing that the body of the note was not written in the defendant's usual style, but was cramped and unnatural. DAVIES, J., who wrote one of the two opinions published, held that the evidence was competent, and it is apparent that he regarded the papers produced, as in evidence and material. MULLIN, J., whose opinion is also published, regarded the papers as in evidence, but held the evidence was improper, on the ground that the witness was not called upon to speak from his own knowlege of the party's handwriting, but from a comparison with other writings. The facts in the case before us do not bring the question within the rule laid down by Judge DAVIES, if we take that to be the proper one.

It is manifest that the answer to the first ques' on, LANSING - VOL. I.

21

Johnson v. Hicks.

propounded to the expert, was improperly received. The inquiry clearly and directly called for his opinion on the question in issue. The witness understood the question to call for his opinion, and he gave his answer accordingly: "It is my opinion that 'Mason Hicks' is a simulated signature,' the word "simulated" being used in both the question and answer, in the same sense as forged or counterfeited. The fact that this witness afterward gave his reasons for his opinion does not relieve the evidence from the force and ground of the objection. The true basis of the objection is, that the witness had never seen the testator write, nor in any proper manner become familiar with his signature. Until he had this essential knowlege he was not competent to offer an opinion. The evidence of this witness, in describing the appearance of the signature to the will, was competent and undoubtedly very beneficial to the jury, in drawing their attention, in detail, to the appearance of the signature, so as to enable them to judge, whether, as a question of fact, it was different from the testator's genuine signature. The party assailing the will as a forged instrument, had a right to have a full and minute description of the signature incorporated in the record, so that the court of review may be informed as fully as possible of the appearance of the signature. Any intelligent business man is a competent witness for this purpose. However intelligent and experienced, he is incompetent to give an opinion as to the genuineness of the signature, unless he be acquainted with the handwriting of the deceased.

The other authorities cited by the respondent, are decisions made in other States, where it is well understood a different rule prevails. Considering the nature of the issue, upon which this evidence was given, and the character of the evidence, that each party produced to support the same, we must regard this incompetent proof, as likely to have had weight with the jury, in determining the issue against the appellants.

In my opinion, it was technical error to permit the witness,

Randall v. Snyder.

Parmelia Burdage, to testify that, in her opinion, on the day the wi bears date, Richardson was unable to go up stairs to the room where the will was executed. If it were the only error in the case, the court would likely hold that it could not have had any controlling weight with the jury and disregard the same.

There must be a new trial granted on the feigned issues. New trial granted.

CHARLES M. RANDALL, Respondent, v. ALMON B. SNYDER, Appellant.

(GENERAL TERM, EIGHTH DISTRICT, SEPTEMBER, 1869.)

Defendant was president of an incorporated company, known as the T. O. and M. Company, and intending and being empowered to bind the company thereby, made a note, running as follows: "I promise to pay, as president of the T. O. and M. Co., &c.," signed his name, adding “President of the T. O. and M. Co.," and for value received delivered it to plaintiff; the plaintiff knew of the defendant's agency, and, that in making the note, he intended to charge only the company.-Held, an action, seeking to charge defendant personally on the note, could not be sustained.

Where an agent of a corporation contracts on its behalf, making no representation as to the power of the corporation, he is not personally bound by the contract, if it turns out it was ultra vires as to the corporation.

THIS action was brought before a justice of the peace, on a promissory note, made and delivered by the defendant to the plaintiff, in the following terms:

"$137.75. For value received, I promise to pay, as president of the Transit Oil and Mining Company, one hundred and thirty-seven, and seventy-five one-hundredths dollars, to Charles Randall.

Dated, November 16, 1866.

A. B. SNYDER,

President of the Transit Oil and Mining Co.

Judgment was rendered for the plaintiff, and there was a