[This is taken from David N. Carvalho's Forty Centuries of Ink, originally published in 1904.]
ESTIMATED VALUE OF SCIENTIFIC EVIDENCE AS HELD BY THE COURT OF APPEALS—NOW BEYOND THE PURVIEW OF CRITICISM—VERDICTS IN THE TRIALS OF CAUSES AFFECTED BY SUCH EVIDENCE—LENGTH OF TIME NECESSARY TO OVERCOME PREJUDICE AND IGNORANCE—WHERE OBJECTIONS TO SUCH EVIDENCE EMANATE—SOME OBSERVATIONS ABOUT SUCH EVIDENCE GENERALLY—WHEN PRECEDENT WAS MADE TO CHEMICALLY EXAMINE A COURT EXHIBIT BEFORE TRIAL—THE CONTROVERSY IN WHICH JUDGE RANSOM MADE THIS NEW DEPARTURE—CITATION OF THE CASE AND ITS OUTCOME—DECISION IN THE GORDON WILL CASE OBTAINED BY THE SCIENTIFIC EVIDENCE—COMPLETE STORY ABOUT IT—HISTORY OF THE DIMON WILL CASE AND HOW CHEMISTRY MADE IT POSSIBLE TO CONSIDER IT—OPINION OF JUDGE INGRAHAM—PEOPLE OF THE STATE OF NEW YORK V. CODY—THE ATTEMPT TO PROVE AN ALLEGED “GOULD” BIRTH CERTIFICATE GENUINE, FRUSTRATED BY CHEMICAL EVIDENCE—THE DEFENDANT CONVICTED—THE PEOPLE V. KELLAM—CHEMICAL EVIDENCE MAKES THE TRUTH KNOWN—THE HOLT WILL CASE AND THE EVIDENCE WHICH AFFECTED ITS RESULT—THE TIGHE WILL CASE—OPINION OF JUDGE FITZGERALD.
“The administration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular delusion and superstition. The revelations of the microscope are constantly resorted to in protection of individual and public interests. . . . If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Wherever what they disclose can aid or elucidate the just determination of legal controversies there can be no well-founded objection to resorting to them.” Frank v. Chemical Nat. Bank, 37 Superior Court (J. & S.) 34, affirmed in Court of Appeals, 84 N.Y. 209.
THIS decision by a final court of adjudicature, expresses in no uncertain terms the now generally estimated value of evidence which science may reveal. The importance which that branch of it denominated “Chemico-legal ink” has attained and its utilization in many trials of causes both civil as well as criminal, places it beyond the purview of criticism or objection. With the introduction of a new class of inks in the last two decades, its scope has been much broadened.
Innumerable verdicts by juries wherever the system prevails, all over the world, the opinions of learned judges, whether presiding during a jury trial or sitting alone, more or less affected by this character of evidence, presents fairly the trend of the views of the public mind respecting it.
Constant experiment and successful demonstrations, covering a period of over fifty years, was necessary to overcome prevailing prejudices and ignorance.
The conditions to-day, which happily obtain, are that the objection to the introduction of such evidence finds its source usually in the side seeking to obscure and hide the truth or facts, while the honest litigant or innocent individual hastens to advocate its employment.
Another feature worthy of consideration is that persons who possess intimate knowledge of ink chem. istry and who might otherwise successfully perpetrate fraud if opportunity presented itself, refrain from making the attempt because of that very knowledge, which is sufficient also to teach them of the possible exposure of their efforts. Again, they and others are aware of the reliance placed on chemico-legal evidence as an aid to the cause of justice by courts and juries and this is an added reason why they hesitate to take chances. These propositions being true, they establish another one, viz: that most of the attempted frauds at the present time in this connection, are by the ignorant and those whose conceit does not permit them to believe that any one knows more than themselves.
Chemico-legal ink evidence as before stated has been employed in the trials of causes for many years; but it was not until the year 1889 that a precedent was established for the chemical examination of a suspected document preceding any trial. The honor of this departure from the ordinary modes of procedure belongs to the Hon. Rastus S. Ransom, who was surrogate of the county of New York at the time.
The matter in controversy was an alleged will executed in triplicate by one Thomas J. Monroe. Charges were made that the three wills were spurious, as they were facsimiles of each other. It was for the main purpose of determining the methods of their make-up 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 admitted to probate.
Experiments, both in open court or during its sessions in the testing of ink and paper, microscopically and chemically, are of frequent occurrence, and many contests involving enormous interests have been more or less decided as the result of them.
The contest of the alleged will of George P. Gordon, tried before the late Chancellor McGill of New Jersey in 1891, illustrates in a remarkable degree just how certain are the results of investigations of this character. The chancellor’s decision, after listening to testimony for many weeks, was in effect to declare the will a forgery, largely because of the fact that the premise on which it rested was a so-called draft, from which it was sworn it had been copied. The ink on this draft it was proved could not have had an existence. until many years after the date of the forged will.
The decedent, who died in 1878, was the inventor of a famous printing press, and left a large fortune.
A will offered for probate soon after the death of Gordon was not probated, owing to the discovery that the witnesses had not signed it in each other’s presence. The principal beneficiaries, however, under that will, the widow and daughter of Gordon, agreed to a division of the estate which was satisfactory to the other heirs at law, and the matter apparently was settled.
But a retired lawyer named Henry C. Adams began in 1879, a year after Gordon’s death, to endeavor to obtain the assistance of some heirs at law in an enterprise which was finally ended only when Chancellor McGill’s decision was rendered.
In 1868 Adams lived with his father and brothers on a farm, near Rahway, N. J., adjoining the Gordon place. The two men became well acquainted through their common interest in music. Adams called upon A. Sidney Doane, a nephew of Gordon, and told him that Gordon had made a will in 1868 which might be found or if lost, established by means of a draft of it which he (Adams) had retained. Mr. Doane refused to act upon this proposition. Then Adams presented the matter to Guthbert O. Gordon, a brother to George P. Gordon. He declined to consider the proposed search for a new will. Adams then wrote to Guthbert Gordon, Jr., cautioning him to say nothing to any one, but to come and see him. Guthbert Gordon, Jr., declined to accept Adams’s invitation for a secret conference. Adams did not write or communicate with the widow or daughter of George P. Gordon, or with any of the officials or other persons who dealt with the estate. Finding that the heirs at law were satisfied with the arrangement of the estate under Gordon’s daughter’s management, he gave up his efforts at that time.
In 1890 Mary Agnes Gordon, the daughter, died in Paris, and remittances from her ceasing and her will not being satisfactory to those who had been receiving them from her, another contest was begun. This caused a renewal of Adams’s activity. In 1890 he wrote to Messrs. Black & King, a firm of lawyers who represented the contestants of Mary Agnes Gordon’s will. Adams’s letter to the law firm contained this expression:
“If one of you will come over here on Sunday morning, bringing no brass band, fife or drums, I will tell you something worth knowing.”
Mr. King visited Adams, who was then living at Orange, N. J., and was told by him that Mr. Gordon had executed a will in 1868 which he (Adams) had drawn at Gordon’s instance, and that he had retained a corrected draft from which the will itself had been copied. He also told King that the original will after its execution had been left with his father, and that it must be at his father’s homestead near Rahway, where he would try to find it. A few days later he wrote to Black & King that the will had been found, and the next day went with the lawyers to Rahway and identified the package found by his brother Edward Adams, who occupied the Rahway farm, as that which contained the will. The package, unopened, was taken to a safe deposit company and the original draft was deposited with the secretary of state. The alleged will, which Chancellor McGill pronounced a forgery when finally opened in the preliminary probate proceedings, was found to be a very long and complicated document, written on blue paper in black ink. The draft, which was on white paper, was also written in the main in black ink, but a copious quantity of red ink had been used in interlineations. The significant paragraph of the new will was a direction to his heirs to purchase, if the testator had not succeeded in doing so before his death, the Henry Adams farm for $32,000. Minute directions were given to insure the purchase, but no lower price than $32,000 was mentioned. Commenting upon this Chancellor McGill’s remarks:
“It is also to be here noted that the Adams farm is now scarcely worth one-third the price for which it is directed to be purchased.”
Continuing the court says:
“The only living person who professes to have had knowledge of this disputed paper prior to November, 1890, is Henry C. Adams. He most clearly and positively testified that he drew the disputed paper at the instance of Mr. Gordon. He produced a draft from which he said it was copied. . . . I have already stated that Mr. Adams testified most positively when the draft of the disputed paper was offered in evidence that it was the identical document from which the will of 1868 had been copied, and it is to be remembered that the interlineations in that draft are almost all made with red ink, and that Mr. Adams testified that those interlineations existed when the will was copied from the draft. With a view to testing the truth of this testimony the contestants submitted the draft to scientific experts, who pronounced the red ink to be a product of eosine, a substance invented by a German chemist named Caro in the year 1874, and after that time imported to this country. At first it was sold for $125 a pound, and was so expensive it could not be used commercially in the manufacture of ink. Afterwards the price was so greatly reduced that it became generally used in making red ink. It is distinguished by a peculiar bronze cast that is readily detected. It was recognized in the red ink interlineations in the draft of the disputed paper produced by Mr. Adams by a number of scientific gentlemen, among whom were some of the best known ink manufacturers in the country, and Mr. Carl Pickhardt, who first imported eosine. Upon further examination the witness, Adams, said he thought the draft produced to be the original until he saw the will on blue paper, and that then he was perplexed, but dismissed his doubt upon the suggestion of counsel, but afterward he thought upon the subject ‘in the vigils of the night,’ but by an unfortunate coincidence did not reach substantial doubt enough to correct his previous testimony until after the testimony concerning the character of the red ink he had used in interlining had been produced. . . . It is impossible to study this remarkable case at this point without grave doubts as to the truthfulness of Mr. Adams, and indeed as to the frankness with which the case was produced in court in behalf of the proponents.”
As to Adams as a witness, the court finally says:
“And as I read the confused answers of Mr. Adams and note his apparent misapprehension of questions that would tend to involve him, and note the apparent failure of his theretofore wonderfully clear and exact memory of the most trivial and unimportant details, I am inclined to reject the whole story as a fabrication that has been punctured and fallen to pieces. . . . I find it to be impossible to rely upon the testimony of Henry C. Adams. Excluding it the will is not proved. . . .
“I will deny probate, revoking that which I have heretofore granted in common form.”
* * * * * * *
In the attempt made to prove the alleged last will and testament of Stephen C. Dimon, deceased, chemistry was the all-determining factor in the most important branch of the case. The peculiar features of this remarkable and unique case are best described by presenting them with a brief history of the entire matter.
In 1884 Stephen C. Dimon of the city of New York made and executed a will, choosing as legatee and executrix a Mrs. Martha Keery. The will he intrusted to the custody of his counsel. It appeared. that some time during the following year his attorney transferred this will from its resting place in a desk drawer to a new safe and recalled having seen its envelope a year later, but said he never saw the will thereafter.
In 1893 Mr. Dimon died. No will being produced, his brother took, out letters of administration. Whereupon Mrs. Martha Keery commenced a suit against the brother and the next of kin he represented, in an effort to obtain the dead man’s estate. She based her claim solely on the LOST will, the contents of which were recalled in the trial by Mr. Dimon’s former counsel, who was also one of the witnesses to the lost will. During the course of the trial in the Supreme Court, presided over by Justice George L. Ingraham, Mrs. Keery’s attorney produced a mutilated document which from its reading indicated that it had once been a will, though not the “lost” one. But the names of the legatee, executrix, testator, names of witnesses and their addresses were completely obliterated. The written portions still undisturbed showed it to be in the handwriting of Stephen C. Dimon. Mrs. Keery’s story was that after the death of Mr. Dimon in going over an old coat formerly worn by him, she had found it in a side pocket and had given it to her counsel just as it came into her hands.
Its condition showed it to be considerably pocket-worn. The obliterations referred to represented huge blots of black ink covering a lot of scratches and making it impossible to decipher the under writing. Defendant’s Counsel immediately requested that the document be turned over to an expert, to see what could be done with it. The judge granted the motion and adjourned the case for several days to await results.
Counsel on both sides joined in the selection of myself. Three days were occupied in its decipherment. The will occupied two sides of a full sheet of legal cap. The original ink which was employed in the writing of the will was of pale gray color. The first obliterations were a series of pen and ink scratches and marks which destroyed the writing. Not satisfied with them the operator had with a saturated piece of blotting paper, brushed over the scratches and as that ink was of good quality every mark of writing had disappeared in the jumble and blots. It so happened that three inks had been employed. The original ink, the ink used for scratching and the one employed to do the blotting. The three inks were happily mixtures containing different constituents, and so by utilizing the reagent of one which did not affect the other, gradually the encrusted upper inks were removed and later the original writing appeared sufficiently plain not only to be read but to identify it. Photographs made before and after the chemical experiments, permitted court and counsel to make their own comparisons during the giving of the testimony about it.
It permitted also the finding of the two witnesses who lived outside of the city and to learn many details from them as to Mr. Dimon’s conduct in the matter.
The restored will showed that Mrs. Keery at its date (1891) was still in his mind, and its destruction by himself—that he had changed his mind.
Justice Ingraham completes his opinion in deciding the case as follows:
“In this case, however, the long time that elapsed between the time of the delivery of the will to Mr. Morgan and the death of the testator, the absence of my satisfactory proof of the existence of the will from the time it was delivered to Mr. Morgan to the time of the testator’s death, and the fact that the testator made another will, making substantially the same disposition of the property, which he subsequently destroyed, all tend to cast a doubt upon the fact that the will was in existence at the time of the testator’s death, and there is positively no evidence that it was ever fraudulently destroyed.
“I do not think the court is justified in diverting a large sum of money from those legally entitled to it, by allowing, a lost will to be proved, except upon the clearest and most satisfactory evidence of the existence of the will at the time of the testator’s death. And the testimony in this case falls short of what I consider necessary to establish such a will.
“There should be, therefore, judgment for the defendants with costs.”
* * * * * * *
A case of considerable interest was tried before Hon. Clifford D. Gregory in the month of March, 1899, in the city of Albany, New York. It was entitled the “People of the State of New York against Margaret E. Cody,” as charged with the crime of blackmail, in the sending of a letter to Mr. George J. Gould, in which she threatened to divulge certain information which she claimed to possess about his dead father, Jay Gould. The character of this information was such that if true it meant that Jay Gould and his wife had lived in bigamous relations during a great number of years preceding their death and hence also affected the legitimacy of the entire Gould family. Mrs. Cody asserted that Jay Gould was married to a Mrs. Angel some time in 1853, and that as a result of that “lawful” marriage she gave birth to a daughter, a Mrs. Pierce, who was still alive and living somewhere in the west. As Mrs. Cody offered to sell or secrete the information which she said she possessed for a consideration, Mr. George J. Gould and his sister, Miss Helen Gould, instantly determined that it could be nothing else than a clear case of an attempt at blackmail, which falsely impugned the reputations of their dead parents. They instituted criminal proceedings against Mrs. Cody, charging that Mrs. Cody when she wrote the letter well knew that her claim that his father had been married to Mrs. Angel and that Mrs. Pierce was their daughter, was absolutely false. Two trials followed, the first in 1898 in which the jury disagreed, and a second one in 1899 which lasted over a week. It was in the second trial that chemical tests on a certain entry in a church record in the presence of the jury were made, which showed conclusively that ancient writing of another character than that which had been substituted was still existent beneath the writing which was apparent to the naked eye.
The following are excerpts of the judge’s charge to the jury:
“I wish to invite your attention, for a few moments, to the baptismal certificate. You have had produced here before you the original baptismal record of the church at Cooperville. It has been substantially admitted, in the arguments of this case, that there has been a change made in this certificate. I do not think that the District Attorney claims that there is any evidence that Mrs. Cody herself changed this record; there is no claim, as I understand it, made by the prosecuting officer that she went there and obtained this book, and with her own hand changed this record; but he asks you to infer and find from the evidence that has been given, that she was a party to this change, that she was privy to this change, and that knowing that fact she had guilty knowledge when she wrote the letter upon which the indictment is based.
“You will remember that Mr. Carvalho, the expert in handwriting, was placed upon the stand; and he has testified in your presence as to his qualifications in determining disputed handwritings, and what his experience has been during a long series of years. He tells you that he has examined this record, and that there is no question but some of the words have been erased and others substituted in their places. He tells you that the words ‘Jay Goulds’ were not the original words in the certificate, or if they were, the present ‘Jay Goulds,’ as they appear in the certificate, have been forged; that the words ‘Mary S. Brown,’ the ‘sex mois,’ the French words for six months, and other changes which he has described to you are forgeries.
“I shall submit to you, as a question of fact, whether or not Mrs. Cody had any knowledge or took any part, or authorized or connived at any of the changes made in this certificate. I do not say that she did; I leave it to you to say, from the evidence in this case, whether your minds are convinced that she had any part or parcel, or undertook in any way to accomplish the changes which have been made in this baptismal record. And if you find as matter of fact that she had such knowledge at the time this letter was written; if you find as matter of fact she had this information given to her by Mrs. Angel, then I leave it to you to say whether she had such knowledge, such guilty knowledge, as should prevent her, if acting honestly, from writing a letter such as has been described here and contained in the indictment.”
The jury brought in a verdict of guilty.
In the trial of the People v. David L. Kellam (1895), who was charged with altering the dates of three notes for $6,000 each, the contention of the prosecution was that the dates of the notes had been changed by chemicals, and with the consent of the defense a reagent was applied to the suspected places and the original dates restored. The verdict of the jury was guilty.
In the Holt Will case, tried in Washington, D. C., in the month of June, 1896, great stress was laid on the fact of the difference in the admixture of inks found on letters contemporaneous with the date of the will, and it was asserted also that the ink with which the will was written was not in existence at the time it was alleged to have been made, June 14, 1873, and probably not earlier than ten years later. Furthermore, that it was a habit of Judge Holt up to the time of his death, which habit was illustrated in his writings and correspondence to “sand” his writing. The jury decided the will was a forgery.
Another famous case in which the scientific testimony about ink and pencil writing must have assisted the court in arriving at a conclusion was in the trial of the famous Tighe will contest, tried before Hon. Frank T. Fitzgerald, one of the present surrogates of the county of New York. The story of this case is incorporated in the opinion which is cited in part:
“Hon. Frank T. Fitzgerald, Surrogate of the county of New York:
“That Richard Tighe died on the 6th day of May, 1896, at No. 32 Union Square, in the city and county of New York, where he had lived for fifty years prior to his death, and was at the time of his death over ninety years.
“That the testator, on or about the 27th day of March, 1884, in the presence of the attesting witnesses, duly signed the instrument in writing, and duly published and declared the same to be his last will and testament, and requested said witnesses to witness the same, and pursuant to such request said attesting witnesses did subscribe said will as attesting witnesses. That at the time said Richard Tighe so signed, published and declared the said instrument to be his last will and testament, the said Richard Tighe was in all respects competent to execute the same, and was not under any restraint or undue influence. That the said instrument, so signed, published and declared by testator was and consisted of the identical sheets of paper and the identical writing now appearing upon the same as to all except pencil writing; the testator did not publish or declare the marks, words or figures written in or upon said instrument in pencil to be a part of his last will and testament, and it is not found that such marks, words or figures were upon said instrument at the time when said instrument was so published and declared to be the last will and testament of the testator. That the said last will and testament is written consecutively upon two sheets of legal cap paper.
“That the said last will and testament was originally prepared with blank spaces left for the insertion of the numbers of shares intended to be bequeathed and devised to the various beneficiaries named therein, and as so prepared was in the hand-writing of Caroline S. Tighe, the wife of testator, and that at some subsequent time and before the execution of the said instrument by the said Richard Tighe, the blank spaces hereinafter referred to as filled in in ink, were filled in by or under the direction of the testator. Upon said instrument as offered for probate there appears in the blanks originally left thereon, in some instances, pencil writings superimposed over other pencil writings, which have been either wholly or partially erased, and in other instances ink writing different from the body of the instrument in the material employed, appearing over pencil writings wholly or partially obliterated. . .
“That the said words written in ink filling such blanks as aforesaid expressed the final determination of the testator with regard to the beneficiaries to whom the same applied; and that the words and figures written in pencil filling such blanks as aforesaid were written only deliberately and tentatively and that as to those words and figures the testator had not at the time when he executed, published or declared said instrument to be his last will and testament determined as to whom or in what proportions he would give the several shares of his estate and property covered by said words and figures, but the testator attempted and intended to reserve to himself the power of making disposition of said shares thereafter, and intended the final disposition thereof to be in ink
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