Throckmorton v. Holt,
180 U.S. 552 (1901)

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U.S. Supreme Court

Throckmorton v. Holt, 180 U.S. 552 (1901)

Throckmorton v. Holt

No. 21

Argued December 7, 10, 1900

Decided March 26, 1901

180 U.S. 552


At the trial of this case before the jury, the main issue was upon the validity of the will of Adjutant General Holt. Tecumseh Sherman, a son of General Sherman, was called to prove that the signature of his mother as a witness was genuine. He was not inquired of as to the genuineness of the signature of his father, because his uncle, Senator Sherman, had testified that that signature was genuine. Subsequently Mr. Randolph testified that he was familiar with the signature of General Sherman, giving his sources of knowledge, and that he was of opinion, (giving his reasons for it) that it was not his signature. Tecumseh Sherman was recalled to prove that the objection found to the signature of his father was not an unusual feature in his signature, but the court, on objection, excluded the evidence. Held that the evidence was competent as rebuttal, and should have been received.

It is the general rule that, if evidence which may have been taken in the course of a trial be withdrawn from the consideration of the jury by the direction of the presiding judge, such direction cures any error which may have been committed by its introduction, but there may be instances (and the present case is one) where such a strong impression has been made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the general objection may avail on appeal or writ of error. There may also be a defect in the language of the attempted withdrawal. In such a case, and under the particular facts in this case, the names of the witnesses should have been given, and the specific evidence which was given by them, and which was to be withdrawn should have been pointed out.

The opinion of a witness as to the genuineness of the handwriting found in a paper, based in part upon his knowledge of the character and style of the composition and the legal and literary attainments of the individual whose handwriting it purports to be, are not competent to go to the jury upon the question raised in this case.

Declarations, either oral or written, made by a testator either before or after the date of an alleged will, unless made near enough to the time of its execution to become part of the res gestae, are not admissible as evidence in favor of or against the validity of the will.

If not admissible generally, they are inadmissible even as merely corroborative of evidence denying the genuine character of the handwriting.

No presumption of revocation of the will by the testator, or under his direction,

Page 180 U. S. 553

arises from the appearance of this will when first received by the register of wills. There must be some evidence of an act by the deceased, or under his direction, sufficient to show the fact, or the instrument must have been found among the papers of the deceased, mutilated, torn or defaced, under such circumstances that the revocation might be presumed.

As the production of the will in this case created no presumption of revocation, it was necessary to prove that the act of mutilation was performed by him or by his direction, with an intention to revoke, and his declarations, not being part of the res gestae, cannot be used for that purpose.

This was a proceeding in the Supreme Court of the District of Columbia for the purpose of proving an alleged will of the late Joseph Holt, a distinguished lawyer and for many years Judge Advocate General of the United States Army, who died at the age of eighty-seven, in Washington on August 1, 1894, after a residence of many years in that city. The proceeding resulted in the rejection of the paper on the ground that it was not the will of Judge Holt, but was a forged document, and judgment refusing probate was entered upon the verdict of the jury. The proponents of the will appealed to the Court of Appeals of the District, but before the appeal was brought on for argument, Miss Hynes, one of the legatees named in the will, withdrew her appeal. The judgment of the Supreme Court upon the appeal of the other proponents was subsequently affirmed by the Court of Appeals, and the proponents of the paper, excepting Miss Hynes, have brought the case here by writ of error.

The record shows that Judge Holt died leaving no relatives nearer than nieces and nephews, residents of the States of Indiana, Mississippi, and Kentucky, and of the City of Washington, D.C., all being respondents in this appeal. He had been twice married, and both wives had died long prior to his own demise. He had no children by either wife. Immediately upon his death, his nephews, Washington D. Holt and William G. Sterrett, came to his late residence in Washington, and the keys being delivered to them by one of the servants, a strict search was made for a will, but none was found. While the nephews were in possession of the house and the search was going on for the

Page 180 U. S. 554

will, papers were burned and destroyed, all of which the nephews testified were wholly unimportant, and consisted of letters from relatives of Judge Holt to him, and that no papers destroyed were of a testamentary character. No will having been found, the nephews above named, and another, named John W. Holt, filed a petition in the Supreme Court of the District of Columbia, holding a special term for orphans' court business, in which the fact of intestacy was stated and the appointment of an administrator was asked. Pursuant to the petition, and on September 28, 1894, the National Safe Deposit, Savings & Trust Company of the District was appointed administrator of the estate, and has continued so to act since that time.

Up to August 26, 1895, nothing out of the ordinary occurred in the administration of the estate, but on the last-mentioned date, a sealed envelope, addressed to the register of wills in Washington, was received by that officer, which envelope was postmarked "Washington, D.C. August 24, 6 P.M. 1895, L." The envelope was opened by the register, who found therein a paper purporting to be a will signed by "J. Holt," dated February 7, 1873, and on the paper appeared what purported to be the signatures of Ellen B. E. Sherman, U.S. Grant, and W. T. Sherman as witnesses. By this paper Judge Holt gave one-half of his estate to Lizzie Hynes, her real name being Elizabeth Hynes, and the other half to Josephine Holt Throckmorton.

Lizzie Hynes had been left an orphan in infancy and had been committed to the care of her uncle, Dr. Harrison, and his daughter, the first Mrs. Holt, and she had taken special charge of the child up to the time of her own marriage to Judge Holt, who had promised his wife at the time of their marriage to care for the child, and Mrs. Holt, upon her deathbed, asked and received a promise from Judge Holt that he would always take care of Lizzie and treat her as if she were his own daughter. From that time until his death, Judge Holt fully and in all things kept his promise and always supported her, she living most of the time in Kentucky, though frequently visiting and traveling with him.

The other beneficiary, Miss Throckmorton, was Judge Holt's god-daughter, her mother being the cousin of his second wife, and

Page 180 U. S. 555

while her father was a young man, Judge Holt treated him with great kindness, and always so treated Miss Throckmorton.

The following is the text in full of the alleged will, with punctuation as in the original:

"In the name of God Amen"

"J, Holt, of the City of Washington D.C. being of sound mind declare this to be my last will & Testament"

"I do hereby give devise & bequeath all of my property -- both personal & real to Lizzie Hynes -- cousin of my first wife & to Josephine, Holt, Throckmorton -- who is my God-child & to their heirs & assigns forever -- I do hereby direct that at my death all of my property be divided equally between them. --"

"Lizzie Hynes is to inherit hers at my death Josephine at the age of 21, her Father Maj. Charles B. Throckmorton will hold her share in trust --"

"I appoint Mr. Luke Devlin of the City of Washington D.C. whose character I believe to be of the highest standard & who will I am certain carry out my wishes my executor"

"Signed & sealed by me in the presence of these witnesses in the City of Washington, D.C."

"Feby 7th 1873 --"

"J. Holt"

"Ellen B. E. Sherman"

"U.S. Grant"

"W. T. Sherman"

There was nothing in the envelope addressed to the register of wills other than this paper. The postmarks on the package indicated that it had been deposited in one of the many local mail boxes to be found in the northwest quarter of the City of Washington, which is quite a large district, running from North Capitol Street on the east to Georgetown on the west, and bounded on the south by the Mall and north by the boundaries of the city. When the paper was taken from the envelope, it bore evident signs of mutilation by burning and tearing, and although the paper recited that it was signed and sealed, there was no seal on it, and if it ever had been affixed, it had been torn away. At the time the paper bears date, February 7, 1873, Ellen B. E. Sherman was the wife of W. T. Sherman, who

Page 180 U. S. 556

was then the general commanding the army of the United States, and U.S. Grant was then President. The paper was torn nearly in two across the page between the signatures of the testator and that of the first witness. Some of the evidence tended to show that the tearing was complete, but, as stated by the court below, the weight of the evidence was that it was not entirely separated at one end. The burning appeared on the edges of the paper and at the top, but the body of the instrument was so far intact as to be plainly legible.

Upon the receipt of this paper by the register of wills, he communicated with Mr. Luke Devlin, the person named therein as executor, and after the latter had seen it, he communicated with the parties interested, and on September 20, 1895, filed his petition in the Supreme Court of the District of Columbia, held for orphans' court business, for the probate of the paper as the last will and testament of Joseph Holt, deceased.

The contestants, as next of kin, filed their caveat October 18, 1895, opposing the probate of the paper, to which answer was made and filed December 2, 1895, by Luke Devlin, the executor, and by the Misses Hynes and Throckmorton, the two legatees named in the paper.

Issues were duly made up in the orphans' court and transferred to the circuit court for trial by jury. They are as follows:

"1. Was the paper writing bearing date the seventh day of February, A.D. 1873, which was filed in this Court on the 26th day of August, A.D. 1895, executed by the said Joseph Holt as his last will and testament?"

"2. Was the execution of said paper writing procured by fraud exercised and practiced upon said Joseph Holt by any person or persons?"

"3. Was the execution of said paper writing procured by the undue influence of any person or persons?"

"4. If the said paper writing was executed by the said Joseph Holt as his last will and testament, has the same been revoked by said testator?"

Upon the trial of these issues, the proponents of the paper proved the death of the subscribing witnesses, and gave evidence

Page 180 U. S. 557

in regard to the genuineness of their signatures as well as of Judge Holt's. Senator John Sherman testified to the genuineness of the signature of his brother, General Sherman; Colonel Frederick D. Grant to that of his father, President Grant, and P. Tecumseh Sherman to that of his mother, Mrs. Ellen B. E. Sherman. Mr. Henry B. Burnett testified that, in his opinion, the body of the will and the signature of the testator were written by Judge Holt; that he became acquainted with him in 1893; had frequently seen him write and had had considerable correspondence with him which continued up to 1889, and that he was familiar with his handwriting. After this evidence was given, counsel for proponents offered the paper in evidence, which was objected to by counsel for the contestants on the ground that the paper was evidently separated into two parts; that it purported to be under seal, and the seal, if it ever bore one, had been torn away; that it appeared to have been burned and mutilated, and had been sent to the register of wills anonymously, and that it was incumbent upon proponents to explain these circumstances before the will could be read to the jury. The objection was overruled, and the paper read in evidence.

Elizabeth Hynes, one of the legatees and proponents, was called and testified that the paper writing was never in her possession, and she never saw it until it was shown her on the witness stand at the trial.

Miss Throckmorton also testified that she had never had the paper in her custody and had never seen it until it was shown her by the register of wills in the latter part of October, 1895, and that the first she knew of its existence was through a telegram from Mr. Devlin, which she received in New York city, August 26, 1895; that she had known Luke Devlin when she was a child, but had not seen him since until after the paper was filed.

Mr. Devlin, the person named as executor in the paper writing, also testified that it was never in his possession, and that he first saw it in the office of the register of wills on the day it had been received there. On cross-examination, Devlin testified that he knew Joseph Holt well since 1862, having been a copyist

Page 180 U. S. 558

and messenger at that time in the office of the Judge Advocate General when Judge Holt succeeded to that office; that he continued to be employed in that office until 1876, when Judge Holt retired therefrom; that he had little communication with him in relation to office matters; that he visited Judge Holt once or twice at his house; that he was in the habit of meeting him socially at the residence of Mrs. Throckmorton, Sr., the grandmother of Miss Josephine H. Throckmorton, from 1865 to 1878; that he had not seen Mrs. Throckmorton, Sr., more than four of five times during a period of ten years preceding the receipt of the will at the register's office, and, on learning of the existence of the will, he had to consult the city directory to ascertain where she then lived; that, on the day the will reached the register of wills, he received a telephone message from the register, went to his office, and saw the will for the first time. He called on Mrs. Throckmorton, Sr., and on the same day telegraphed Miss Josephine H. Throckmorton of the finding of the will, having first learned her address from her father upon inquiry at the War Department; that he called on several occasions in later years at Judge Holt's house, and was informed by the colored servant that he was out or that he was engaged, and asked witness to call again, the last of these visits being about April 9, 1894, shortly before his death; that he had met Judge Holt outside on several occasions, the last of which was about two years before his death, and conversed with him.

At this point, the proponents announced their prima facie case closed, but opposing counsel objected that it was incumbent upon proponents to put in all their testimony essential to the establishment of the alleged will before contestants were called upon to offer any; whereupon the court ruled that, because of the fact that there was no attesting clause to the will, it was proper and necessary for the proponents to offer all the evidence they proposed to offer upon the subject of the genuineness of the signature of Joseph Holt to the will, and counsel for the proponents accepted the ruling as being a matter within the discretion of the court.

Testimony was then given by Elizabeth Hynes, who stated that she had corresponded with Judge Holt for forty years,

Page 180 U. S. 559

and that, in her opinion, both the body of the will and the signature were in his handwriting. Mr. Devlin testified that he had had daily opportunity for thirteen years of becoming familiar with Judge Holt's handwriting, and that the signature to the instrument was undoubtedly in testator's handwriting.

Miss Throckmorton testified that she had corresponded with him, and was familiar with his handwriting and knew his signature, and that both the will and the signature were in the handwriting of Joseph Holt.

Other witnesses were called who testified that they were acquainted with the handwriting of Judge Holt, and that, in their opinion, the body of the paper and the signature were in his handwriting; after which the proponents rested.

Counsel for the contestants then offered in evidence the deposition of John Judson Barclay, in which the deponent testified that he knew the testator intimately from 1857 to 1866, and at intervals thereafter until the time of his death, and that he had last seen him in November, 1893, when he was in impaired health and in a darkened room at which last stated time he had a conversation with Judge Holt in regard to the disposition by him of his property and estate. Evidence in regard to this conversation was duly and fully objected to, and the objection overruled and an exception taken by the proponents. The witness then stated the conversation as follows:

"In our conversation, he referred most touchingly to my deceased sister, Mrs. Sarah Barclay Johnson, and made many kind inquiries in regard to my aged mother, who had also been his warm personal friend for many years. In this connection, he remarked, 'I have made my will and have made provision for her to receive some pictures,' etc., which my sister had painted for him, as well as an ambrotype or photograph of herself, which he highly prized and wished my mother to possess."

Another witness, Mrs. Briggs, testified under proper objection and exception that she had had a conversation with Judge Holt relating to wills sometime between 1888 and 1891 in which he told the witness that if she were going to make a disposition of any piece of her property, to do it before she

Page 180 U. S. 560

passed away; then she would be sure that it would be done and be permanent, but, he continued, "in my own case, my nephew, my brother's son, will attend to my affairs, and I know it will be done all right." Before the conversation ended, Judge Holt had stated that it was his nephew, Washington Holt, and that he would attend to his affairs, and he knew it would be all right.

The objection to this testimony was on the ground that, if it tended to prove anything, it could only mean that there was a will existing in which Washington Holt was named as executor, and that, if offered for the purpose of proving the contents of such will its execution could not be proved by mere declarations of the testator, and also that the legal presumption was that as the will was not produced or found that it had been revoked. If not revoked, it must be produced, and that parol declarations of this character are inadmissible as a basis for proving revocation. Counsel for the contestants admitted that their claim was that there was a will existing in which Washington Holt was executor, but at the same time counsel stated that they wished it understood that the evidence was also offered both on the question of forgery and on the question of revocation of the alleged will of 1873. The objections were overruled, and the testimony admitted and exceptions duly taken.

Subject to the same objections and exceptions, counsel for the contestants further gave evidence to the jury tending to prove that between the years 1884 and 1893, Judge Holt on several occasions told Washington D. Holt that he had made him (Washington Holt) his executor, and on several occasions Judge Holt informed Mary Holt and her mother Vanda Holt that they would be much better off after his death; that they would then go to Europe, and Mary must become proficient in French so that, while in Europe, she could act as their interpreter. Evidence was also given that, during the same period, Judge Holt told the servants of his house on two occasions that Washington D. Holt would have charge of his affairs after his death.

It was also proved that Judge Holt was born in or about the year 1807, in the State of Kentucky, and that until 1856 he lived there, excepting a few years when he practiced law in

Page 180 U. S. 561

Mississippi; that he died in the City of Washington in August, 1894, leaving an estate of about $180,000, about $40,000 of which consisted of real estate in the City of Washington; his mother died in 1871, previous to the date of the alleged will, February 7, 1873.

During the war, it would appear that there was some bitterness of feeling engendered in Judge Holt's mind by the part taken by his relatives, most of whom favored the South, and some of whom entered its military service. Evidence was also given on the part of contestants tending to prove that Judge Holt, prior to February 7, 1873, had on several occasions received visits at his house in Washington from some of his nieces and nephews, and had kindly received them and spoken kindly of them to others after they had gone.

Letters of his were received in evidence, without objection, dated prior to February 7, 1873, directed to different relatives in Kentucky, and tending to show pleasant relations between them, while letters of a similar nature from him to those relatives, dated subsequently to February 7, 1873, and up to within a few years prior to his death in 1894, were admitted, but under an objection and exception as to their competency. Evidence was also given, subject to similar objections and exceptions, of declarations of an unfriendly character on the part of Judge Holt towards the father of Miss Throckmorton and also towards her grandmother, the evidence tending to show that he had said some time after the date of February, 1873, that the Throckmortons were his enemies, and that at a reception given by President Arthur, Judge Holt had refused to shake hands with Major Throckmorton, the father of Miss Josephine; also declarations of his to his servants that he would not see the Throckmortons, these declarations having been made many years subsequently to February, 1873.

All of this class of evidence was offered by the contestants in support of their allegation that the paper was a forgery as well as upon the issue of revocation.

There was also evidence given on the part of the proponents tending to show that Miss Throckmorton was a great favorite of Judge Holt's, and that his feelings of affection for her had

Page 180 U. S. 562

never changed, notwithstanding he may have felt differently towards her father and grandmother. She was his goddaughter, and she testified (after the evidence above referred to on the part of contestants) that she frequently visited and stayed at Judge Holt's house, and in 1892 he told her that he was an old man, on the brink of his grave, but that he had provided for her, and that she would be perfectly independent, and that was the last time she ever saw him; that he never spoke to her at any time otherwise than kindly and with affection.

Letters indicative of interest and affection for the mother of Miss Throckmorton were put in evidence by proponents, after evidence of that character had been given by contestants, in relation to the relatives of Judge Holt.

Other evidence was given upon the trial not necessary now to be referred to.

To the question whether the paper filed in court on August 26, 1895, was executed by Joseph Holt as his last will and testament, the jury answered "No."

To the fourth question -- whether, if the paper had been executed by Joseph Holt as his last will and testament, the same had been revoked by him -- the jury answered "No, because it was not executed."

No evidence having been given in relation to matters referred to in the second and third questions, the jury by direction of the court returned a negative answer.

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