dissenting.
The learned trial court denied the offer of proponent to submit to the jury the testimony of the county treasurer and of the deputy county treasurer of Adams county and the cashier of a H astings bank to establish that the offered signature and handwriting of John O’Connor were genuine. These men were long time residents of the vicinity and acquaintances of the decedent. They were not permitted to testify solely because proponent did not call them as witnesses in chief, as shown in the main opinion. The ruling is without the doubtful merit of being even technically correct. To exclude material testimony on a point so vital for the reasons advanced for excluding it appears to be an abuse of judicial discretion. Seebrock v. Fedawa, 30 Neb. 424, 431; Kerr v. Lunsford, 31 W. Va. 659.
The expert testimony on handwriting is not satisfactory. The expért conclusion is based on a comparison of the will with letters and bank checks admittedly genuine. *630When the testimony is analyzed, the comparison does not seem to be altogether fair upon examination of the exhibits used for comparison. Ordinarily a bank check is hastily drawn for a temporary purpose, perhaps while standing at a bank counter, and with an indifferent pen, or maybe a pencil. To some extent the same is true of a letter. But vastly different is the laborious penning of a will by the hand of a testator. For a man who had lived the life of John O’Connor up to the time the will was written, for one of his temperament and lineage, the making of a will would be a matter of great and dignified import, an event extraordinary, one that would attain almost to the solemnity of a religious rite. It would hardly be expected that he would write a bank check for a nominal or for any amount, or an ordinary letter, with the same care and precision that he would with his own hand write his will from a copy that was prepared by his direction and that lay before him as he wrote. As between an authentic wifi so written and a collection of bank checks and a few letters as those instruments are ordinarily written, one would expect to find a variance in the slant of some of the letters and in some of the spacing. One would expect to find the cross-mark of almost every “t” crossing the stem in any will that John O’Connor ever wrote, and the lower loop of the capital letter “I” would be planted squarely on the base line. The expert testimony seems to prove too much. In a forgery so much fault is not ordinarily found either with slant or spacing, nor as to the other discrepancies pointed out by the expert testimony.
It would be a different situation if the discrepancies ivere found in separate collections of checks, or of letters, one collection being admittedly genuine and the other in dispute, and each collection compared Avith the other. But that is not the case before us. The discrepancies arc of the sort that one would expect to find in a comparison betAveen a will that Avas carefully and solemnly prepared, Avritten and signed by a testator, and checks and letters that Avere written by him to serve the passing purpose of *631a day. Circumstance of time and place and purpose and condition all have to do with the appearance of the handwriting. For the reasons pointed out, and for others equally apparent from a careful reading of the main opinion, the writer submits that the probative value of the expert testimony on handwriting in the present case is reduced to the vanishing point.
It is a splendid sentiment to which the main opinion gives expression and to which all will agree, viz.: “The purpose of a trial is to discover the truth and administer justice.” But it is a far cry from a purpose so laudable to the order of proof of the trial court that, for a trivial reason that was scarcely if at all even technically correct, excluded the offer of material testimony that was intended to aid the jury to discover the truth with respect to a vital point, namely: Did John O’Connor, the Hastings recluse, with his own hand, write and sign the will in question? Every case should be made to hinge, not upon technical rules invoked by the skilled tactician, but rather upon the eternal principles of truth and justice so aptly alluded to in the majority opinion.