第 44 节
作者:辩论      更新:2021-02-27 01:31      字数:9322
  that Judge Ransom rendered the opinion and made
  the order for its chemical examination which is cited
  in full:
  Estate of Thomas J。 Monroe。〃This is an application
  by the special guardian and contestant in
  this proceeding; which is now pending before the
  assistant; for leave to photograph the various
  papers which have been filed as the will of the
  deceased; and to compel the filing of two parts of
  one of said wills; which was executed in triplicate;
  likewise that the last paper be subjected to chemical
  tests for the purpose of disclosing the nature of
  the composition of the ink and the process or
  processes to which it has been subjected。
  〃Upon the oral argument the surrogate decided
  the applications first stated in favor of the petitioner;
  reserving only the question of his power to
  direct or permit the chemical tests。 The special
  guardian on the oral argument stated that he was
  unable; to find any authority for the application。
  〃Consultation of the various sources of authority
  upon the subject of expert testimony and the
  various tests for the purpose of establishing or disproving
  handwriting has not resulted in the discovery
  of any authority for granting the application。
  It is apparent; however; from some of the cases
  that such an examination must have been permitted;
  for instance; in Fulton v。 Hood (34th
  Penn。 State Reports; 365); expert testimony was
  received in corroboration of positive evidence to
  prove that the whole of an instrument was written
  by the same hand; with the same ink; and at the
  same time。 It is inconceivable how testimony of
  any value could be given as to the character of
  ink with which an instrument was written; unless
  it had been subjected to a chemical test。 The
  writer of a valuable article in the eighteenth volume
  of the American Law Register; page 281 (R。 U。
  Piper; an eminent expert of Chicago; Ill。); in
  commenting upon the rule as stated in the case of
  Fulton v。 Hood (supra); very properly says:
  〃 'Microscopical and chemical tests may be competent
  to settle the question; but these should not
  be received as evidence; I think; unless the expert
  is able to show to the court and the jury the actual
  results of his examination; and also to explain his
  methods; so that they can be fully understood。'
  〃The writer of this article is also authority for
  the statement that in the French Courts every
  manipulation or experiment necessary to elucidate
  the truth in the case; even to the destruction of the
  document in question; is allowed; the Court; as a
  matter of precaution; being first supplied with a
  certified copy of the same。
  〃The most obvious argument to be urged against
  allowing a chemical test to be made on a will; and
  one that was suggested by the court on the argument
  of this motion; is that; inasmuch as the paper
  may be the subject of future controversy in this or
  some other tribunal; future litigants should not be
  prejudiced by any alteration or manipulation of the
  instrument。 I do not think; however; that this
  objection is sound。 Take an extreme case; of permitting
  a sufficient amount of the ink (which the
  affidavit of the expert shows to be but infinitesimal)
  for the purpose of chemical examination;
  the form of the letter would remain upon the paper;
  if not; the form and appearance of the entire signature
  might; as a preliminary precaution; be preserved
  by photography。 The portion of the signature
  remaining would afford ample material for
  future experiments and investigations in subsequent
  proceedings wherein it might be deemed advisable
  to take that course。
  〃Because the subject matter of the controversy
  may be litigated hereafter should not deprive parties
  in the proceeding of any rights which they
  would otherwise have。 They certainly are entitled
  to all rights in this proceeding that the parties to
  any future proceedings would have。 Besides; all
  the parties whose presence would be necessary to
  an adjudication in; for example; an ejectment proceeding;
  are (or their privies are) parties here。 It
  certainly cannot be that the law; seeking the truth;
  will not avail itself of this scientific method of
  ascertaining the genuineness of the instrument because
  of some problematical effect upon the rights
  or opportunities of parties to future litigations
  respecting the same instrument。 The possibilities of
  litigation over a will are almost infinite; and if such
  a rule should obtain this important channel of
  investigation would be closed。 Suppose the same
  objection were raised to the first action of ejectment
  which might be brought; it might then with
  the same force be urged that parties to some future
  ejectment suit would be prejudiced by a chemical
  test of the ink used in the will; and so on ad infinitum。
  〃By not availing itself of this method of ascertaining
  the truth as to the character of the ink; the
  Court deprives itself of a species of evidence which
  amounts to practical demonstration。
  〃I can see no reason why the application should
  not be granted。〃
  The order in part reads:
  〃It is ordered and directed that Charles H。
  Beckett; the special guardian aforesaid; be and he
  hereby is allowed permission to photograph the
  aforesaid paper writings described in said order to
  show cause; viz。; one of the two parts of a triplicate
  Will of Thomas J。 Monroe; deceased; dated
  February 10th; 1873; which were filed in the office
  of the Surrogate of the City and County of New
  York on or about the 9th day of May; 1889; and
  also the contested Will herein dated March 27th
  and June 1st; 1888; and to have the said paper
  writing; bearing date March 22d and June 1st;
  1888; subjected to such chemical test or tests as
  shall disclose the nature of the composition of the
  ink and; if possible; the process or processes to
  which it has been subjected; if any。
  〃And it is further ordered and directed that
  such chemical test be applied to the ink or writing
  fluid on said alleged Will to the following specified
  portion; or any part of such portions; viz。〃
  Specifications in minute detail follow; calling attention
  to the words and spaces which are permitted to
  be chemically tested; and then continues:
  〃And it is further ordered and directed that the
  said paper writings shall be photographed before
  any chemical tests are applied thereto。
  〃And it is further ordered and directed that
  such photographing and chemical tests be performed
  by David N。 Carvalho; Esq。; a proper and
  suitable person; at the places above indicated
  respectively; between the 10th and the 20th days of
  June; 1889; inclusive; in the presence of the parties
  in interest or their attorneys; upon at least two
  days' notice to all parties herein or their attorneys。
  〃And it is further ordered and directed that in
  the event of destruction or breaking of the negatives
  after such paper writings have been photographed;
  the said special guardian; upon similar
  notice; shall have leave to re…photograph the said
  paper writings; at the same place and by the said
  David N。 Carvalho; between the 10th and 20th
  days of June; 1889; inclusive。
  〃(Signed)            RASTUS S。 RANSOM;
  〃Surrogate。〃
  On the 19th of June; 1889; pursuant to the order of
  the court; the alleged will referred to was first photographed;
  and later in that day such places as had
  been designated in the order were chemically treated;
  as part of a series of experiments。 The results obtained
  briefly summarized were as; follows: The instrument
  which purported to be a holographic will of
  Thomas J。 Monroe the experiments showed conclusively
  to be not the case; as neither pen nor ink in
  the body writing portion or in the decedent's signature
  had ever touched the paper; the date and names
  of the witnesses thereon were written; however; with
  pen and ink。 Furthermore; the experiments demonstrated
  beyond question that exclusive of its date and
  names of witnesses; that it was what is commonly
  known as a transfer taken from a gelatine pad (hektograph);
  a method of duplicating popularly in vogue
  at that time。 The deduced facts in the matter being
  that Thomas J。 Monroe had written his will in an
  aniline purple ink; to which he had appended his name;
  leaving blank spaces to be filled in for the date; names
  of witnesses; etc。; and had transferred the same to a
  hektograph; from which he had taken a number of
  duplicate facsimile copies; and at some other time had
  filled in the blank spaces by ordinary methods and to
  which; at his request; the names of the witnesses had
  been written with a pen and ink。 In the trial which
  followed the surrogate declined to sustain the allegation
  of the proponents that the alleged signature was
  the original writing of Thomas J。 Monroe; or indeed
  of any person。 The will was not admitt