CONCURRING opinion.
Fenner, J.I do not profess to be an expert in hand-writing, and the document propounded as the will of Mrs. Gaines is too skillful an imitation of her -writing to enable me to pronounce from mere inspection and comparison that it is a forgery. Nor would the testimony of the experts serve, unaided, to convince me of the fact. I discern differences between specimens of Mrs. Gaines’ writing and signatures admitted to be genuine, quite as marked as those signalized in the evidence of the experts and in the opinion of the court.
Still, the contradictory evidence on the subject of the apparent genuineness of the will is of a nature to leave the question in serious doubt on this pioint, and to justify and require a resort to other circumstances for the purpose of determining it.
For, after all, the factum probandmn is that this instrument is the veritable will of Myra Clark Gaines, and however perfect the resemblance to her writing, yet if the other proof in the case is of a character to satisfy the judicial mind that she did not execute it, the probate of the will must be denied.
Now in tills case, I discover the following- circumstances, several of which are adverted to in the majority opinion, but which I prefer to recapitulate and group together, in order that their collective weight, as operating on my mind, may be appreciated.
1st. There exists no bond of blood or affinity between the beneficiaries under the will propounded and Mrs. Gaines, while she left direct descendants, who were the natural objects of her affection and who *137had done nothing to forfeit her bounty. It is difficult to conceive why she should divert from her grandchildren to these persons so large a share of her estate.
2d. The evidence leaves no doubt on my mind that the friendship which Mrs. Gaines had at one time felt for Mrs. Evans had suffered a great change during the latter years of her life. This appears from her letters and conversation, as well as from the greatly diminished intercourse between them. The change may have been wrought by the influence of others, but this does not negative its existence. Nor is it contradicted by the expressions of formal regard contained in contemporaneous letters to Mrs. Evans, written generally on business; and the nature of that business is itself a strong negation of the existence in the mind of Mrs. Gaines of any such benevolent sentiments towards Mrs. Evans as are evinced in the will. It related to hard and usurious bargains which Mrs. Gaines was then driving with Mrs. Evans under the convenient guise of a fictitious third person, repeating the trick of the usurer in Sheridan’s immortal comedy, pretending to get the money loaned from another lender who was “ an unconscionable dog.” Her whole conduct in the premises displayed an eager desire to get the better of Mrs. Evans — certainly not natural towards one whom she contemplated as her intended legatee of so large a share of her estate.
In this connection I attach no weight to the curious documents produced and foreshadowing this will, because these and the will must stand or fall together as parts of one whole, all of which or none are genuine.
3d. The wills of January 4 and 5, four days preceding the date of the will propounded, though invalid for defects of form, were undoubtedly the free and genuine expression of the testamentary wishes of Mrs. Gaines, and are absolutely inconsistent with the existence in her mind at that time of any wish to make a disposition in favor of Mrs. Evans or her mother. Nothing occurred to the knowledge of any one having access to her, before or after the making of that will, indicating dissatisfaction with their dispositions, at least so far as her grandchildren were concerned, or any desire or intention to change it then.
4th. It is certainly a significant circumstance that Mrs. Gaines had made a conveyance of the Fuentes property, which was bequeathed to Mrs. Perldns in the pretended will, to Wilder, which was extant and unrevoked; and though it may have been a simulated title, Mrs. Perkins might have been unable to establish the simulation, and it is *138strange that in making sueli a bequest she should not have alluded to the condition of the title, or left some clue for the legatee.
5th. The mode in which the will came into the possession of Mrs. Evans, according- to her own account, is mysterious and extraordinary. As she had had no access to Mrs. Gaines, the will must necessarily have reached her through some third person •, and the person named by her absolutely denies any connection with it and contradicts the whole statement of Mrs. Evans.
I have duly considered the commentaries upon the character of this person’s testimony and upon various significant circumstances which cast suspicion upon it. While they raise a doubt as to its entire truthfulness and a suspicion that she had had some connection with the paper and some kind of dealing with Mrs. Evans in relation to it, they do not convince me that she spoke falsely in denying that she ever received the paper from Mrs. Gaines.
At all events, the statement of Mrs. Evans as to the manner in which the paper came into her hands is entirely unsupported and is denied by the only witness who could have confirmed it.
6th. To cap the climax, the evidence places it beyond belief that Mrs. Gaines could have executed the will .propounded on January 8. That evidence is stated with great force in the majority opinion and need not be repeated.
Conceding it to be possible that Mrs. Gaines, by a tremendous exertion of will power, might have written the words “January 8th, 1885” on that day, in the firm and shapely characters presented in this paper, yet it is manifest that, in order to do so, she must have either had assistance, or, at least, that the paper, the pen and the ink should have been at her hand. The evidence leaves it doubtful whether she was ever, for a moment, alone on that day. It is conclusive that no one assisted her to write any part of the document, and that she did not so write in the presence of any of her attendants; and that the pen, ink and paper were not together at her hand in such manner that she could have used them unassisted. Unless some dark peijury lurks in the testimony of her attendants, it is humanly impossible that Mrs. Gaines executed that will or any part of it on the 8th of January, 1885.
Taking all the foregoing circumstances together, my mind is unable to resist the conviction that the document propounded is not the will of Myra Clark Gaines.
The evident sincerity of proponent’s counsel and the signal skill with which they have arranged the lights and shadows of their case, so as to throw its strong points into bold relief and to obscure its *139weaknesses, have at times in the course of my investigation engendered doubts and staggered the firmness of my conviction; but when I revert to the overwhelming array of circumstances above detailed they leave my mind in no doubt that the strength of proponents’ cause lies in the argument of counsel and not in the cold facts of the record.
I concur in the decree.