On Application por Rehearing.
Poché, J.The main object of appellant is to induce us to modify our decree from a final judgment to one of non-suit only.
The principal reliance is od the uncertainty of human testimony, especially in matters of handwritings. Such an argument might apply to all convictions of the human mind, based on extraneous proof, and to all human judgments.
But the issue presented by the pleadings was the genuineness of the will propounded by Mrs. Evans, and having reached the conclusion that the will was not genuine, we can find no logical middle-ground on which to rest a judgment of ron-suit.
The evidence and the considerations which convinced us that the document propounded as the olographic will of Mrs. Gaines, was not genuine, in other words, that it was not in the hand-writing, either in the body or in the signature, of Mrs. Gaines, logically carries with them the conclusion that the pretended will was in the handwriting of some other person, or, in other words, that it was a forged document.
There is no perceptible difference between the two propositions ; the only distinction being that one proposition is couched in negative woi ds, and the other in affirmative terms. Hence our decree, if it had been restricted to the declaration that the will was not genuine, and that therefore it could not be probated, would not in substance have differed from the judgment which refuses the probate because the will is a forgery.
To have said less would not have been consistent with the conclusions forced on our minds by the record, and would not have done justice to the force of the evidence which it was our duty to examine and to consider.
Our solemn conviction is that, not only has Mrs.Evans failed to show that the will which she propounds is in the hand-writing of Mrs. Gaines; but that the opponents have succeeded in demonstrating that the document is not in the hand-writing of the deceased.
The legal deduction from that fact is that the instrument is a forgery it therefore became our duty to so declare and to adjudicate ac*140cordingly. There must be an end to litigation, and when the evidence is sufficient to justify a final judgment, courts would be derelict to their duty in refusing to give it all the legal effect it is entitled to.
But we are charged with error in simply affirming the judgment of the lower court, on the ground that the judge committed a palpable error in adjudicating that the confidential letter of August 23, 1884, is likewise a forgery.
Our attention had not been previously drawn to that feature of the judgment, and on close examination of the pleadings, we think that such an adjudication is not indispensable to the ends of justice and strictly speaking, perhaps not covered by the issue as narrowed down by the pleadings.
But we understand the reason which led the judge into that slight error; it was superinduced by the following language in appellant’s first petition. Referring to the will which was presented for probate, counsel said:
“That petitioner herewith presents said testament for probate; that she likewise produces another testament of decedent of anterior date,” and the prayer of the petition is for probate of “said last will and testament,” without reference to the dates of either of the wills.
The judge may' therefore have had reasons to suppose that the genuineness of both wills was at issue.
But on close examination we find that Mrs. Evans did not ask for probate "as a will of the confidential letter of August 23, 1884, and hence it is proper that it be not dealt with as a testament, or as an issue for adjudication.
What was said on the subject in our opinion is purely argumentative, and we had not then considered the fact that the district judge had treated the matter as an issue in the case. This is shown by our concluding language, which says: “Our solemn conviction is that the will propounded by Mrs. Evans is] not in the handwriting of Mrs. Gaines.” * * * Hence it is clear that our intention was not to declare any other document to be a forgery, in our decree. We therefore consider that those expressions in the judgment appealed from are mere surplusage.
But to remove all doubts on the subject, we shall amend the decree in that particular. But as the proposed amendment does not alter the practical result of the litigation as settled by the judgment appealed from, it is not of the nature of amendments which in law usually entail the costs of appeal on the appellee.
*141A second examination of the case has satisfied us that all the conclusions of law and on the evidence contained in our opinion are supported by the record, by sound reason and by authority.
It is therefore ordered that our former decree be amended so as to read as follows:
The judgment appealed from is therefore amended by striking out of it that portion which adjudicates that the confidential letter of August 23, 1884, purporting to have been made by the deceased, Myra Clark Gaines, as a last will and testament, be rejected as false, fraudulent and forged and not entitled to probate, and as thus amended said judgment be affirmed. Costs of appeal to be paid by appellant.
Rehearing refused.