Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-09
OREGON SUPREME
COURT DECISIONS
Continued from. Page 81

writing and spelling of an uneducat-
ed man does not vary greatly. What
he has learned with difficulty and
does with difficulty he usually does
in the same manner every time. I'm
like the skilful penman he is unable
to make the same letter several
times in different ways. and unlike
the educated man he does not cor
rect his mistakes in spelling And
If the differences between the genu-
ine writings of deceased and those
relied upon by proponent were the
only evidence in this case, they would
be sufficient to stamp all these docu-
ments as forgeries. But they do not
stand alone. Witnesses of the high
est responsibility, who are familiar
with Young's handwriting = clerks,
bankers and public officials-testify
that proponents exhibits are forger-
ies. Experts of long experience bear
the same testimony, the preponder-
ance in the weight of evidence of this
character being largely in favor of
contestants.
Proponent also raised the question
that the will drawn by Parkes is a
forgery and that the signature of de-
ceased thereon is tracing. An ex-
pert, called by proponent, promptly
declared the signature a tracing. We
have carefully examined the sigma
ture under a microscope and there
is little doubt that pen with differ
ent colored ink has been run over the
original letters in the name of Young.
So that Notwithstanding the respect
ability of the witnesses to the will
and their apparently straightforward
! testimony, If ii had been shown that
the will when presented for probate
was in the same condition that it now
appears there would be a strong pre-
sumption against it's genuineness.
But it is shown that the will has not
, been always in the custody of the
clerk and that it has been taken out
of the Office for the purpose of eX-
animation and that proponent has
had access to it. The theory of con-
testant is that the signature has
been tampered with since the COM
mencement of these proceedings with
a view to casting a doubt upon its
validity.
Charles Marsh. who knew Young's
handwriting, and is himself an ex-
pert in handwriting testifies that
the signature had apparently been
changed after he first examined it.
Hon. John McCourt, U. S. District
attorney, Judge Fee, Judge Lowell,
Frederick Steiwer, Frank Sailing,
county clerk, and Joseph Parkes, all
of whom had had occasion to exam
inc the will carefully, some of them
examining it through a magnifying
glass, all testify that the signature
has apparently been tampered with
since the institution of these pro-
ceedings and since they first exam
ined it, and the preponderance of
testimony indicates that such is the
fact, and we do find.
We are of the opinion that the will
drawn by Parkes is the genuine will
of James w. Young. Much more
might be added in support of the
views here announced, but as no dis
puted questions of law arise, we re-
frain from encumbering the reports
of this state with longer discussion
of facts. The case is an unique one,
and, in our judgment, daring con-
spiracy to defraud and loot the es-
tate of ]. w. Young by means of
forged documents supported by per-
jured testimony.
A motion to dismiss the appeal in
this case is filed for the reason that
Caroline. Phillips died prior to the
appeal and that there has been no
substitution and no notice of appeal
served upon the representatives of
her estate The statute of this state
provides that "Any party to judg-
ment or decree may appeal
therefrom" etc.: L. o. L. Sec. $40.
"The party desiring to appeal may
cause notice, signed by himself or
attorney to be served on such ad-
verse party or parties as have ap-
peared in the action =. Such
notice shall be sufficient if it con-
tains the title of the cause, the names
of the parties, and notifies the ad-
verse party or his attorney that an
appeal is taken to the supreme or
circuit court as the case may be,
from the Judgment, order, or decree
or some specified part thereof" Sec.
$50. By adverse party" we think
the statute means an adverse party
on the record. All the contestants
appeared together by the same attor-
neys and for the same purpose and
their interests are identical and not
adverse The decree was against all
the defendants, including Mrs. Phil
lips, and went to the status of par
ticular instrument, to-wit, the will.
The allowance of costs is incidental
to the decision on the principal sub
ject-the validity of the will. Pro-
ponent saw fit to take a decree