REPORTS OF CASES
DECIDED AT
NISI PRIUS &c. &c.
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Court of Queen's Bench, Guildhall, coram Cockburn, C.J.

CRESSWELL AND ANOTHER V. JACKSON AND ANOTHER.

Issue out of Chancery to try whether three codicils to the will of George Nuttall, who died on 7th March, 1856, having made his will on September 10th,1854, were genuine, the said codicils being dated respectively on the 27th October, 1855, the 6th January, 1856, and the 12th January, 1856.

The plaintiffs Cresswell and Else affirmed that the codicils were genuine.

The defendants, who were executors of the residuary devisee under the will, denied it.

Karslake, Field and Hannen were for the plaintiffs, who set up the codicils.

Hayes, Serjt., Ballantine, Serjt., and Wills were for the defendants, who claimed under the will.

[RH margin]
1864
London Sittings.
Hilary Term.

On the trial of an issue directed by the Court of Chancery to try whether three codicils, set up by and mostly in favour of the principal plaintiff, in whose handwriting it was suggested they were, there being also an interlineation in the will in his favour, also suggested to be in his handwriting: the attesting witnesses to the first codicil denying their attestations, were allowed to be examined by the plaintiff adversely ; but evidence, by comparison of his handwriting and otherwise, was received with a view to show the probability of forgery upon the circumstantial evidence alone, even against positive testimony of attesting witnesses ; 2. That the onus was upon the plaintiff, who set up alterations and codicils against an admitted will, to satisfy the jury as to their genuineness ; 3. That if the evidence left the jury in doubt on that question, they should find for the defendants, who claimed under the will.

VOL. IV. B. FF

The testator, who lived with a housekeeper named Catherine Marsden, in September, 1854, employed one Newbold, an attorney, to prepare a draft of a will in blank, which he filled up and signed in duplicate, and he took the duplicates to the attorney's office, where, on the 10th September, 1854, he duly executed them both, and took both of them away with him.

Under this will, John Nuttall was residuary devisee of the bulk of the real property, which was considerable.

On the 7th March, 1856, the testator died, and after his death one of the duplicates was discovered, and, after his funeral, the other; the latter with an interlineation of two bequests in favour of Else and Marsden.

The will was proved with that interlineation.

John Nuttall died soon after the testator, leaving children, for whom the defendants were trustees.

On the 15th September, 1854, the testator made his will in duplicate, under which one John Nuttall was residuary devisee, and he, Cresswell, and one Marriott, were executors.

Some time in 1855 he executed a codicil, attested by two witnesses, named Gregory and Buxton ; what it was, and whether it was the first of those now in issue, was disputed.

On the 7th March, 1856, he died.

Immediately after his death, one of the duplicates of his will was found unaltered.

Immediately after the funeral the other duplicate was said to be found among his papers, with an interlineation, the effect of which was to bequeath two annuities, one to his housekeeper, the other to his agent or assistant, the co-plaintiff Else; and the will was proved with that interlineation.

In April, John Nuttall, the residuary devisee under the will, died, and the defendants were his executors and trustees for his family.

In April, 1856, soon after his death, Else produced a codicil dated 27th October, 1855, purporting to be in the testator's handwriting, and to be attested by the persons named Gregory and Buxton, leaving him a portion of the estate. This codicil was proved on the affidavit of Buxton.

In January, l857, Else produced a second codicil, dated 6th January, 1856, also purporting to be in the testator's handwriting, and to be attested by two persons named Adams, his medical attendant, and Knowles, a farmer, one of his nearest neighbours. This also disposed of a portion of the real estate in favour principally of Else.

In October, 1857 Else produced a third codicil, dated 16th January 1856, also purporting to be wholly in the testator's handwriting, and to be attested by Adams and Knowles, and, like the others, chiefly in favour of Else.

These were the codicils in dispute. The result of three was for the most part to dispossess Nuttall in favour of Else.

The first codicil was proved on the affidavit of Buxton, the second on the affidavits of Adams and Knowles. The third being found, all were disputed. A bill was filed by Else to establish them, and hence the present issue, which involved only the codicils, not the interlineation.

In that suit Gregory and Buxton, the two witnesses whose names were to the first codicils, were examined on behalf of the plaintiff, and acknowledged their attestations, but in cross-examination denied seeing the testator sign anything, at all events in October, the date of this codicil.

Karslake, however, opened that both Gregory and Buxton, the witnesses to the first codicil, were now adverse witnesses and he was allowed to examine them adversely as to their previous statements (a).

Gregory now stated that the signature was his, but he had not seen the testator sign the paper (a).

Buxton did not acknowledge his signature to this document, though he did not deny having signed some document for the testator, but that he thought was earlier than October, 1855.

Both were examined adversely as to their having in the course of the proceedings in the Probate Court or Chancery admitted their attestation; and, on the side of the defendants, evidence was allowed to show the probability of the forging of their attestations.

Adams being dead,

Hannen, for plaintiffs, proposed to read his examination.

Hayes, Serjt., objected, and cited Richards v. Morgan (b), where the Court were divided.COCKBURN, C. J., said it was a doubtful point, and the evidence must be admitted at the peril of the plaintiffs.

The examination of Adams was read, and it proved his attestation of the two later codicils. Knowles, the other attesting witness, was called.

There were some contradictions between the evidence of Adams and Knowles ; for instance, Adams swearing that he did not know he was attesting any testamentary instruments, and Knowles swearing that he had told him, and that they had talked about it.

The circumstances of the alleged finding of the codicils were strange and improbable ; one, the last, having been, it was said, found in a hole in a wall.

The codicils were all written in the same handwriting, which was the same as that of the interlineation, but was quite different from that of the will, and was suggested to be that of the principal plaintiff Else. There were gross misspellings in the codicil of words spelt rightly in the will, and never misspelt by the testator. And evidence was admitted of a habit on the part of Else so to misspell words (a).

Documents admitted to be in the handwriting not only of the testator, but of Else, in whose handwriting it was suggested the disputed codicils really were, were put in for the purpose of comparison (b).

At the close or the case-

COCKBURN, CJ (to the jury).-There is a distinction between the case as to the first codicil and the case as to the second and third, in this respect: that as to the first the attesting witnesses do not admit their attestations, as to the others, the attesting witnesses affirm them. As to the first, the attesting witnesses have already, more than once, on their oaths, affirmed their attestations, although they now disavow them ; one by denying his handwriting to this codicil, the other by denying that he saw the testator sign anything at any time. Both admit, how-

ever, that at some time in 1855 - though earlier, as they now say, than October, the date of this codicil - they were called in by the testator to witness something, and as there is hardly any instrument by law requiring attestation by two witnesses except a testamentary disposition, and the testator, being well acquainted with such instruments, would know that it was necessary to their validity that the witnesses should see him sign, the probability is that they did attest some codicil, and you would not attach any weight to their denial of their attestations unless you are satisfied that there was a forgery of this codicil and of their signatures to it, and that it was substituted for one which they really had attested. On the first codicil, as on the second and third, therefore, the question resolves itself into one of forgery. And necessarily so on the second and third, as to which the attesting witnesses affirm their attestations on oath, so that the Instruments can only be impeached on the theory that they were parties to a conspiracy to carry out a fraud by means of forgery and perjury.

If the first codicil was forged, the second and, third, which refer back to it, are probably forged too. And if the second and third are forged, there can be little doubt that the first was ; for it is clear that they all form part of one series of testamentary dispositions, and the handwriting in all is the same.

So as the handwriting of the interlineation is the same as that of the codicils, although the genuineness of the interlineation is not expressly or directly included in the issue, yet it is virtually, indirectly and incidentally involved in it, and so as to the epitome or abstract of the will found with the first codicil.

Undoubtedly, therefore, the issue does really involve the question of a conspiracy between the attesting witnesses to the two later codicils with the Co-plaintiff Else to set up

forged and spurious instruments. As to the first, the attestation is denied, and the credibility of the denial will depend on your belief as to the genuineness of the instrument. And as to the others also: the question really turns on whether the documents were genuine or forgeries.

No doubt, the onus is on the plaintiffs to establish the codicils, and as the will is admitted, the defendants are entitled to the benefit of any doubt. But the real question is, whether the instruments were genuine or forged ; and that question you must try as if the parties were on their trial for forgery or conspiracy. Nor must you shrink finding against the instruments, if the evidence leads you to that conclusion, though it is circumstantial evidence, and opposed to the direct and positive testimony of witnesses of apparent credibility. You must try the question of their credibility, starting with the presumption in their favour ; but still, looking to all the circumstances of the case, the circumstances attending the discovery of the documents, any contradiction in their testimony, any inconsistency with undoubted facts, - above all the internal evidence afforded by the documents themselves, whether as to the handwriting, the spelling, or the contents and effect of the instruments, and the probabilities of such dispositions. And that turns rather on the internal character and contents of the document than on the mere improbability of the circumstances of their alleged discovery, although that may and ought to be considered as an element of judgment.

On the main question, your attention may be directed to the documents put in for the purpose of comparison of handwriting, not only the documents in the handwriting of the testator, but of Else (a). [They were all handed to the jury.]

But if the circumstances of the case, and especially the contradictions of the witnesses, or the inconsistency of their subsequent conduct with the theory of genuineness, and above all the internal evidence of the documents themselves, as shown in their character and contents, lead you to the conclusion of guilt, do not shrink from it merely because it is circumstantial evidence against direct testimony.

The credibility of the testimony itself is for you : and, on that question, probabilities, coupled, with contradictions or inconsistencies, may be considered.

The evidence of professional witnesses is to be viewed with some degree of distrust: for it is generally with some bias. But within proper limits it is a very valuable assistance in inquiries of this kind. The advantage is, that habits of handwriting - as shown in minute points which escape common observation but are quite observable when pointed out - are detected and disclosed by science, skill and experience. And it is so in the comparison of hand- writing by the assistance of experts.

Take this into consideration, with all the other circumstances in the case.