In view of the serious earnestness with which appellant in his petition declares that there is no evidence in the record that the will is in the handwriting *Page 674 of the testator, it is incumbent upon us to call his attention to the evidence referred to.
At the outset we will not only admit, but emphatically confirm, appellant's categorical assertion that: "There is not a shadow of testimony to substantiate that statement in the supreme court's decision." However, testimony is not synonymous with evidence. If competent, anything whatsoever, perceptible to the five senses, when submitted to court or jury constitutes evidence.
Here, in the record, appears a sheaf of exemplars, consisting of over twenty letters, checks, affidavits, note-books and other writings, each of which was positively sworn to be in the handwriting of the testator. These exhibits were duly admitted and by the court considered. Were they evidence? Witness the declaration of C. S., sec. 7971:
"Whenever the genuineness of a writing is at issue, any writing admitted or proved to be genuine is competent evidence as an exemplar for the purpose of comparison with the disputed writing: . . . ."
What is an exemplar? A specimen. (New Standard Dictionary.) And a specimen is capable of supporting both deduction and inference. Not this court alone, but scores of others, have recognized the competency of such exemplars as ultimate evidence. The practice and its desirability are illuminatingly set forth in 10 Rawle C. L. 994, par. 180:
"The old rule has been repudiated, however, in most if not all jurisdictions, and it is now generally recognized that a comparison of writings is a rational method of investigation, and that similarities and dissimilarities thus disclosed areprobative, and as satisfactory in the instinctive search for truth as opinion formed by the unquestioned method of comparing the signature in issue with an exemplar of the person's handwriting existing in the mind and derived from direct acquaintance, however little, with that handwriting. . . . ." (Italics ours.)
By act of Congress, March 3, 1913, comparison of handwritings is now permitted in the federal courts. To the *Page 675 same effect is 22 C. J., pp. 772 and 778, pars. 876 and 879, citing a host of decisions.
As to the cancelations in the will, appellant finds fault with the presumption that they were made by the dead man since the proponent for some considerable time had access to the repository in which the will was found. And appellant urges that no such presumption obtains in the face of such admitted fact. Appellant is mistaken. The presumption is there all the time, but may be overcome when nothing more is shown than that someone had opportunity to tamper with the instrument. In the instant case, the proponent swore that, while she had seen in the safe the envelope containing the will, she had never seen the will itself until opened by the probate judge. In the presence of her oath, evidently believed by the trial judge, the presumption of tampering based upon her opportunity to tamper fell flat.
Rehearing denied.
Budge, C.J., and Givens, Wm. E. Lee and Varian, JJ., concur.