I am unable to concur in the prevailing opinion in this case. It is conceded that the rule in England, under its Statute of Wills, within the evidence herein, would have established the factum of will No. '2, which, it is claimed would have revoked will No. 1, had it been propounded for probate. - This seems to be established under authoritative decisions by the English courts in two recent cases, one decided in 1902 (Matter of Peverett, L. R. Pro. Div. [1902] 205), and the other decided in 1890 (Harris v. Knight, 15 id. 170).
As is pointed out, however, in the prevailing opinion, the publication of the instrument as a will is not’ required by the 'English, statute (7 Wm. 4 & 1 Vict. chap. 26, §§ 9,13), but is required under our Statute of Wills (2 R. S. 63, § 40), and the authorities are to the effect that subscription and acknowledgment and publication are two distinct acts, and that the first cannot stand for the last.
• Aside from this question, however, I am bf opinion that the proof offered and received in the casé and the proof offered which has been rejected, had it been received-,, was sufficient in its probative force to.establish the factum, of will No. 2, had such-'will itself been propounded for probate. Evidence was, given tending to show that will No. 2 and will No. 3, the latter bearing date in 1897, were in a . trunk in the testator’s possession; that ■ immediately upon the testator’s death the papers came into the hands of Caleb and Samuel Burbank and were never seen thereafter. Under. the evidence in the case, the surrogate would .have been authorized' to find that these two wills were fraudulently disposed of after the testator’s death. There is no. evidence that he' destroyed them, and the circumstances proved were sufficient to overcome any presumption that they were destroyed during his. lifetime. Under such- circumstances, the court is justified- in giving force and effect tó any. competent evidence, however slight, which, if applied, Would establish the factum of tbp will. It is evident, however, that the appellants 'were not'required to assume this burden in order to justify evidence which would authorize the court to find that will No. 1 propounded for probate had been revoked by either one or the other of the subsequent wills. Section 2620' of the Code, of Civil Procedure provides that when .'‘ all the subscribing witnesses to a written will are * * * *325dead * * * the will may nevertheless be established, upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” Section 1865 of the Code provides for proof of a lost or destroyed will in certain cases, and this section is made applicablexby the provisions of section 2621 of the Code to the probate of a will in a Surrogate’s Court. It is asserted that before an instrument revolting a former will can be received in evidence there must be the same degree- of proof as to the execution of the instrument as is applied to the will itself; that if the revolting clause be contained in a subsequent will thefactum of such will must be established in like manner and strength as would entitle it to be probated had it -been presented to the court for such purpose. The authorities do not seem to support this contention. In Harris v. Harris (26 N. Y. 433) it was held under the provisions of the Revised Statutes (2 R. S. [3d ed.] 133, § 89, revised in Code Civ. Proc. § 1865) which required two witnesses to establish a lost or destroyed will, that such provisions related only to the special proceeding to probate the same; that the statute in its effect did not abolisli the common-law rule of evidence which permitted proof of a lost instrument by a single credible witness in the same manner as a deed. This case was commented upon by the General Term of the Supreme Court in the first department in Upton v. Bernstein (76 Hun, 516). Therein a majority of the court held that there was a distinction between proving the factum of a will and its contents. It is not now essential that we agree or disagree with this-distinction. It seems to be an authority that as to a lost- will the contents of it may be proved by a single witness and force be given to a devise of real estate thereunder, and if so, it is difficult to see why the contents of a will may not be proved under the like proof of its execution by a single witness in order to establish that a will sought to be probated had been revoked. Mr. Justice Follett, who sat in that case, did not draw such distinction, but held that the will was entitled to be admitted in evidence in order ,to establish title to realty and that the provisions of sections 1865 and 2621 of the Code of Civil Procedure had not changed that rule. The distinction which this case makes between proving the contents of the will and the factum so far as to permit evidence of *326its contents in resistance of the probate, of another will does not . seem to have been adopted, if, indeed, it may be said that the déei-, sión so holds. In Colligan v. McKernan (2 Dem. 421) a distinguished surrogate, after citing and commenting upon Harris v. Harris (supra), and citing many other authorities, said : “ Upon the authority óf these decisions, I hold that parol evidence was properly admitted by the surrogate, not only to show that a will was executed by the decedent after the execution -Of the one propounded, but to show, also, that such will contained a clause of revocation.- And, in spite of §§ 1865 and 2621, I hold that the-existence of such a revoking clause may be lawfully proved by the téstimony of a single witness.” The precise point-involved in this appeal was involved in the case last cited, as the purpose of the proof was to defeat a will propounded for probate by proof of a subsequent will containing, a clause of revocation. This construction of the case of Harris v. Harris (supra) was adopted by the Supreme .Court in the fourth department and applied to an issue involving the establishment of a lost will. (Hard v. Ashley, 88 Hun, 103.) And the same rule in substance is announced in Matter of Barnes (70 App. Div. 523). A similar rule was' also recognized in Wallis v. Wallis (114 Mass. 510). In the present case it appears that ' both of the subscribing witnesses to will No. 2 are dead. Under such circumstances resort may be had to proof-of the handwriting of the subscribing witnesses and also couple therewith .such other circumstances as would be sufficient to prove the will upon the trial of an action pursuant to the provisions of sections 1865, 2620 and 2621 of the Code of Civil Procedure, above referred to.- In-the present case it satisfactorily appeared that Mrs. Newcomb was familiar with the handwriting of' Mr."Groser, the last subscribing witness to this will. She testified that the signature appended -to the paper pro-' “ duced by the testator was his genuine signature and that the name of the subscribing witness was in the handwriting of Groser. . Within the authority of the cases wé have cited, upon these facts appearing the appellants became entitled to give -proof' of any other facts and circumstances.tending to establish that the will was executed and tha,t it contained a' revocation of the prior will. Among the circumstances which, may be thus proved is the attestation clause. In Nelson v. McGiffert (3 Barb. Ch. 158) it was said by v *327the chancellor: “ The attestation clause stated that the will was signed, sealed and published by the testator as his last will and testament, in the presence of the attesting witnesses, who, at his request and in his presence, subscribed their names as witnesses thereto. This, after a considerable lapse of time, and when it may reasonably be supposed that the particular circumstances, attending the execution of the will, have escaped the recollection of the attesting witnesses, is a circumstance from which the court or a jury may infer that these requisites of the statute were complied with.” And the court further said in that case: “ There is no doubt as to the jurisdiction and power of the surrogate to receive proof that the will of 1832 was revoked by a subsequent will of the testator, and that such sub-' sequent will had been fraudulently destroyed, or that it was destroyed by the testator when his mind had become so impaired that he was incompetent to perform a testamentary act. The chancellor alone had the power to take proof of such a will for the purpose of establishing it as ■ a testamentary disposition of the property of the decedent. But in resisting the probate of the instrument propounded by McGriffert as the last Will and testament of the decedent, the heirs and next of kin had the right to introduce any testimony which would be sufficient to satisfy.the surrogate that the instrument propounded was not in force as a valid will at the death of the testator named therein.” The same doctrine is announced in Matter of Nelson (141 N. Y. 152) and in Matter of Will of Cottrell (95 id. 329). Indépendent, therefore, of any question with respect to the competency of Mrs. Newcomb to speak upon the subject of the handwriting of the other subscribing witness to the will, it having appeared that the subscription was made in the genuine handwriting of one of the subscribing witnesses, who was dead, and that the testator had subscribed his name thereto, the attestation clause was entitled to be received in evidence in connection with such proof. (Matter of Bernsee, 141 N. Y. 389.) Upon all of the proof which appeared the contestants would have been entitled to have the will received in evidence, had it been present; and as the proof tended to show that it had either been lost or destroyed after the death of the testator, proof of the contents thereof was entitled to be received, not for the purpose of establishing it as a lost or destroyed instrument, but for the purpose of showing that the *328will propounded, for probate had been revoked and was no longer of force, .The learned surrogate, in ruling uppn this subject, held that the attestation clause was not admissible in evidence under the circumstances for- any purpose, that the contents of such . will could not be given, and all testimony relating thereto was ' rejected. This ruling, within the authorities we have cited, would seem to constitute error.’ The declarations of - the, testator in con-' nection with will No. 2, made in March, 1899‘-when.it was the.suU ject. of discussion between the testator and Mri and1 Mrs. Newcomb, were also competent within well-settled authority. Evidence which may be admissible as constituting a part of the res gestae is not necessarily confined to what occurred at the immediate time of the execution of the will for the purpose of admitting the same to probate. This Will No. 2 having beén produced at the time of the ■ interview between the testator and Mr. and Mrs. Newcomb, and declared by the testator to be his last will, and the subject of conversation being with respect to its contents and who -were the executors of it, and the interview being for the express purpose of .discussing sueh question with one of the executors therein named, constituted all of 'the declarations made by the testator in that com ' nection competent evidence as bearing upon the execution of the will. Such evidence may be resorted to for the purpose . of estaba fishing the facts essential to show the execution of the instrument so far at least as to make it operative in revocation of a prior will. Indeed, this court has gone so far as to hold that Su'ch evidence is competent for the purpose of proving the due execution of a will (Matter of Briggs, 47 App. Div. 47), and is in harmony with the language used by Judge O’Brien in Matter of Kennedy (167 N. Y. 163). Therein the learned judge, in discussing the question of the " . general inCompetency of declarations of a testator to prove the revocation- of a will, states the exception : “ Declarations of the deceased ' tending to show that a written will has been revoked are open to the same objection, unless they accompany some act which the statute* prescribes as a requisite of revocation, and then they are received as in btlier cases as part of the res ■ ■ gestae.” The objection which'was interposed to this testimony, and which resulted in its exclusion, *329was in "these words: “ This conversation was many months after the date of the will offered for probate, and, therefore, it cannot be claimed that it was part of the res gestos. It is hearsay and incompetent. Objection sustained. Exception.” It will be noticed that this objection was quite wide of the issue involved in the ruling made by the learned surrogate and to which the proposed testimony related. The res gestee of the subject was not the will offered for probate, but will No. 2, which was then the subject of the declaration. The issue was, had the testator revoked the will then being propounded for probate ? The appellants sought to show that he had, by showing that he produced a will entirely in his own handwriting, subscribed by himself, apparently executed by two subscribing witnesses with what it is reasonable to infer was an attestation clause, subscribed by two witnesses, and with respect to that • will the testator made declarations. Those declarations certainly were a part of the res gestee connected with that will, and as such, within the authorities which we have cited, evidence relating thereto was admissible. It seems to be conceded by the objection that had the testator produced the will propounded for probate under similar circumstances and made similar declarations concerning it, they would have been competent in establishment of' it, and if so then they must have been competent in establishment of the execution of a will revoking the will propounded for probate. Such declarations would have no force and were entirely immaterial as bearing upon the validity of the will propounded for probate. It was not pretended that the testator spoke concerning it, or that the declarations had relation thereto. But as to will No. 2 they were directly applicable, the testimony was competent and should have been received.
I also think it was error to exclude the testimony of Mrs. New-comb with respect to the signature of the subscribing witness Du Bois. It is said that Mrs. Newcomb was not competent to testify concerning this question for the reason that she was not an expert witness, and further, if she qualified as such, the circumstances did not bring her testimony within any rule allowing expert testimony to prove handwriting as applied to these circumstances. It appeared from the evidence that Mrs. Newcomb had been a business woman for over thirty years; that she was engaged in connec*330tion with her. husband’s tobaccd business and kept his privaté ledger for twenty-five years; that she studied the signature-of his- foreign correspondence, went over his .checks and examined the indorsements thereon; that she made a study of handwriting in connection with some raised checks, which had been manipulated by the man-4 ager of her husband’s business; that in this connection she studied the handwriting of over 100 checks in order to determine who raised the'amounts thereon; that an anonymous.letter came to the house and that she.made a study of a great number of handwritings in order to determine by comparison who wrote the letter; that she studied the different handwritings of the persons connected with her husband’s business — clerks’ payrolls and receiver, and- in various other ways had devoted her attention to the subject of handwriting. • It is evident from her testimony that she is a very capable and intelligent business woman. She . seems, therefore, fairly tó fall within the definition of an expert as defined by the authorities. (Lawson Exp. & - Op. Ev. 195, rule 35,- and. cases cited:) Having qualified herself as an expert, was she entitled to testify as to the * handwriting- of Du Bois? As the question is presentéd, it is.somewliat novel. She had never seen Du Bois write, arid did- not know his handwriting prior to the time she claimed to have seen his signature upon the will. Du Bois was dead. He had been a principal in the public schools and his genuine handwriting appeared upon numerous vouchers and payrolls filed in the •office of the comptroller of NeV York city. His will was also pro'duced.1 These papers were all introduced in evidence as furnishing a standard of comparison "with the signature she claimed to ha/ve seen attached, to the will. After having made a thorough examination of these papers and documents, she was asked if,, in her opinion, the - signature attached to the will was" in the handwriting of Du Bois; Objection was interposed to this question, the saíne was . sustained and the evidence was excluded. It is conceded in the comparison of handwritings where they rest in memory, based upon knowledge of the handwriting, that a comparison of such handwriting, with the disputed writing presented for examination calls for á mental process by winch the expert determines and announces his opinion. One condition is the memory, the other the present writing,, in respect to which he is called upon to testify. At common law it has been said. *331that there were three classificatipns, in either of which a person might testify respecting a disputed handwriting. One is where the witness had seen the- paper written or its authenticity had been acknowledged ; second, “ by witnesses- familiar with the handwriting of the person charged to be the writer, and who were, able to testify from their familiarity with his'liaiidwriting to a belief respecting the genuineness of the handwriting in question; ” the third, comparison between the disputed writings and others. The second of these rules alone has application to the present question. The statutes which have been passed regulating this subject are learnedly discussed and commented upon by Werner, J., in People v. Molineux (168 N. Y. 321, 328). Therein the learned judge reached the conclusion that the statutes (Laws of 1880, chap. 36, as amd. by Laws of 1888, chap. 555) had not limited, but had served to enlarge, the common-law rule, as he exhaustively points out.
In principle I am of opinion that this case falls within the 2d subdivision of the rule announced at common law’,' and that the evidence offered under such rule was admissible. Where the witness has seen the handwriting of the person whose writing is the subject of dispute in a letter or other writing he may testify therefrom that he knows the handwriting of such person,.and he is hot incompetent as a witness by reason of the fact that the signature which he saw was made before the controversy arose in which the handwriting became the subject, of dispute. However dim the memory may become by lapse of time, yet if the witness be then able to state that he knows the handwriting, he is competent to testify to such fact, even though years may have elapsed. ■ Such condition goes to the weight of the proof, not to its competency. Such a situation is quite vividly described by Hand, J., in Miles v. Loomis (75 N. Y. 288). Therein the learned judge said: “ Evidence of hand writ-, ing, it is universally conceded, may be opinion merely. It is as universally conceded that a witness who has either ever seen the party write or who, not having seen him write, has received letters from him which have been c acted upon ’ by him as genuine, is competent to give an opinion as to his handwriting, And this competency is not-affected by the lack of' frequency of observation, the length of time which has elapsed since the writing was seen, or the slightness of the correspondence, although the weight of the opinion will of *332eours,e depend much upon • these circumstances.. From what in these cases is the opinion derived, if not from a mental comparison of hands ? The Signature is presented to the witness and' his'only means of forming an: Opinion Upon it is by recalling with more or less distinctness to his mind images of the signatures he has either seen made or attached to letters received, and Comparing them with the .one presented for his opinion. This is certainly a ‘ comparison of hands’ and in my judgment no favorable distinction.as to* accuracy or safety-can be /nade between such a mental process and that of the expert who has: become quick by practice in defecting identity of hands, and also compares in his mind and with his eyé the one in question with other signatures as certainly genuine as those which the ordinary witness lias, seen written or received in. letters. The comparative weight of the two kinds of evidence is not the question under consideration. The opinion of the ordinary witness, founded only upon a mental comparison of the disputed writing with a single signature seen by him twenty years before, would be worth little, but it would undoubtedly be competent. (Jackson ex dem. v. Van Dusen,* 5 Johns. 144; Eagleton v. Kingston, 8 Ves. 473.) So the opinion of an expert founded upon a comparison with but one or two genuine signatures should not perhaps be regarded as of much value, but it still has every claim, in principle, to competency possessed by the other. Nor does the .distinction sought to be raised by Lord Denman in Doe v. Suckermore (5 Ad. & El. 737) between an opinion of án expert' who has previously examined other genuine signatures put in evidence and then is called to speak as to genuineness from his knowledge of the signature thus gained, without actual comparison before the court, and one given upon an: examination or comparison .in court of the signatures and without any previous knowledge, seem on scrutiny to be well grounded or practicable. It would be impossible to draw ax line between these processes. It is undoubtedly true that the opinion as to handwriting should .depend not so much upon mathematical measurements and minute criticisms of lines nor their exact correspondence in detail when placed in juxtaposition with other specimens, as upon its general character and features as in the recognition of. the human face. But in the case nf one expert, his *333mental image or idea of the genuine handwriting may become as clear and vivid and accurate by an examination of the other signatures on the instant, as in the case of another of less practice or quickness of perception after hours or days of study. The amount of knowledge gained by this study and the length of time and frequency of opportunity to gain it affect the weight of the evidence as in the case of the ordinary witness, but cannot properly decide its competency.”
In principle the case which now confronts us is not different from the one .where concededly the rule is applicable. ~ The only difference is that here the condition is exactly reversed. Mrs. Newcomb lias acquired a knowledge of the handwriting of Du Bois from admittedly genuine signatures upon various documents. Her mind now recalls with more or less distinctness the handwriting which she saw-upon the will. By mental process she makes examination of the genuine handwriting-of Du Bois then before her with the handwriting which she carries in her memory taken from the will. By no possibility can there be difference in such operation between a witness who brings the memory of a handwriting which he knew down to comparison with the one upon which his opinion is required. The mental process in both is the same. The principle which establishes right to the testimony in one case confirms it in the other. Both are precisely alike from which is evolved the opinion, and if one is admissible, it is difficult to see why the other is not. We are not now discussing the weight of such testimony, only its competency. The question was precisely decided by the Supreme Court of Kansas in Abbott v. Coleman (22 Kan. 250). It was also considered in Guyette v. Bolton (46 Vt. 228). Therein the evidence was rejected because it did not appear that the witness was qualified to make a comparison. It was not doubted, however, but that the testimony was competent.
It is said that such rule may not be applied for the reason that the testimony thus given is one-sided and that there is no-opportunity to contradict it. This must always be said of a witness giving testimony where the conditions do not admit of its contradiction. Confessedly, Mrs. Newcomb is competent to testify to the signature of G-r'oser because she knew his handwriting, and it is equally true that the respondents are powerless to contradict her upon such subject, *334assuming that they are not able to. producé the will1. Such rule has . never been applied to testimony otherwise competent. It may be a ' .. misfortune that existing conditions do not permit the contradiction of a witness, but such rulé has no bearing whatever upon the competency of his testimony. This is clearly illustrated by the provisions of section .829-of tlie -Code óf Civil Procedure. Such statute was made nécessary- in order to' closé the month of • one person against another, who 1 was dead. Within the authorities, therefore, . I am of. the opinion that the testimony of Mrs. Newcomb respecting the handwriting óf Du Bois was competent and should have been received. If I am right in this conclusion then it follows within the provisions, of the Code of Civil Procedure, to which We have' called attention, that the evidence would be sufficient to-establish the factmn of the will, apd if so, then its contents can . be estab-" lished if the strength of memory of Mrs. Newcomb, who read it, is sufficient to reproduce it. If I am right in this, conclusion- it also necessarily follows that it may be established, as a lost or .destroyed will, and if so and if it revoked the will propounded for probate it will defeat it as a will, and if its contents can be established it may, be proved to be the proper instrument for probate. However this maybe, it seems clear to my mind that the evidence which was 'rejeéted by the learned surrogate was improperly rejected, for which reason the decree admitting will No.-.l to probate should be reversed and a new hearing had. " ,
Van Brunt, P. J.:In view of the misapprehension of the scope of the prevailing opinion by the learned justice who writes the. dissenting opinion, it seems to be necessary to say a. word or two in reply, in ' order that his. assumptions as to the rules contended. for in'.the prevailing opinion shall not pass unchallenged. ■
The learned justice writing .the dissenting opinion states'that, it is asserted, ih the prevailing opinion that “.if the revoking clause be contained in a subsequent, will, the factum Of such will must''be established in like, manner and-strength as would entitle it to be probated had it been.presented to the court for such purpose.” , I think that the prevailing opinión will be searched in vain for even a hint at any such' proposition. ' Upon the contrary, that., opinion *335proceeds upon the theory that common-law proof of the execution of the will was sufficient. This position was conceded by the counsel for the respondents, and it was held that no part of the second will could be read in evidence because there was no proof whatever of its execution as a revoking instrument, the evidence falling short of proof that any two persons subscribed the will as witnesses.
The learned justice .further announces a proposition, which is nowhere contested in the prevailing opinion, although' it would seem that he had the impression that such,was the case. He states that in certain cases the attestation clause of the will raises a presumption that the requirements of the statute in respect to signature, acknowledgment, publication and request to the witnesses to sign have been complied with. And he cites Matter of Nelson (141 N. Y. 152) and Matter of Witt of Cottrell (95 id. 329). He might also have cited the case of Peck v. Cary (27 id. 9), a case which he singularly overlooked on this point. But in each of these cases there was complete proof of the signature of the two witnesses whose names were subscribed to the attestation clause.
The next proposition which seems to need attention is the claim that the conversation which the testator had witli Mrs. Newcomb On the 28th of March, 1890 (the will in question having been executed on the 27t-h of December, 1889, three months before), was part of the res gesta. He says: “ Those declarations certainly were a part of the res gesta connected with that will, and as such, within the authorities which we have cited, evidence relating thereto was admissible.” "What he means by “ were a part of the res gesta connected with that will,” it is difficult to comprehend. The only evidence which pertained to revocation, so far as that will is evidence of revocation, was its execution, and certainly those declarations were no part of the res gesta of the execution, and the very authority which he quotes states that the declarations ot the deceased, tending to show that a written will has been revoked, are open to the same objection unless they accompany some act which. the statute prescribes. The testator at the time he made the declaration to Mrs. Newcomb on the 28th of March, 1890, was doing no act prescribed by the statute* as a requisite for revocation.
*336The only other proposition to which' attention ought to be called is the claim, that Mrs. Newcomb was not Only qualitied to testify as an expert in handwriting to Du Bois’ signature, but also that she did so testify. There is not a particle of evidence in the record from beginning to' end tending to show that she wás ever asked any question as an expert as to Du Bois’ signature. It is true that she was asked about her experience in handwriting, but no question whatever was put to her as an expert, and what is -more the learned counsel for the adult appellants distinctly asserted in his points that' her evidence was not claimed'xto be admissible upon the ground that she was an expert, The whole reasoning by which the learned dissenting justice attempts to support the qualification of Mrs. Newcomb as an expert has no foundation whatever. If there is one thing absolutely" necessary to support the evidence of an expert it is that the premissis upon which the expert bases his opinion shall be .before the court and jury. And this is necessary for the reason that the jury, or, if the trial is had before the court without a jury, the court, is not‘bound by the opinion of any expert. If the opinion, based upon the premissis which are before the court or jury, doés not commend itself to their judgment, they may reject it without any contradictory testimony. The jury are entitled" to have before them the grounds upon which the expert forms his opinion. Where a physician is asked for his opinion in regard, for example, to the permanency of an injury, he must state- the gr'ounds’ upon ■ which he forms his opinion, and then, the jury can judge -as to whether his opinion is based upon existing conditións.' . So in regard to handwriting, the expert must produce before the jury the writings compared. The jury has the- right to inspect them, to examine the writing,, both the one disputed and the one with which it is compared, in order that they may "see whether the ]y'rermss%s upon which the expert bases his opinion have any foundation m-fact or . not. They/also have the right to compare for themselves and to form a judgment of their own. And no. case can be found where an expert has been "allowed to testify where the principal premtss rests solely in his imagination. . - ' '
Patterson, O’Brien and Ingraham, JJ., concurred,
. Decree affirmed, with costs to respondents against the contestants.
See, 2 R. S. 64, § 42.— [Rep.
Jackson ex dem: Van Dusen v. Van Dusen.— [Rep.
See 2 R. S. 64, § 42.—[Rep.