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forty centuries of ink-第44章

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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
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