Law School Case Brief
Kirksey v. Kirksey - 41 Ala. 626 (1868)
It is not allowable for witnesses, or juries, to compare the handwriting of papers not in evidence for other purposes, with the disputed writing or signature in evidence, with the object of arriving at a conclusion as to the genuineness of the latter. In this respect, there is no distinction between the competency of a witness who has seen the party write, and an expert who has never seen him write. The jury may institute a comparison between writings or signatures in evidence before them for other purposes, proved to be genuine, and the disputed one, in order to arrive at a conclusion as to the genuineness of the latter.
Defendant distributees of an intestate decedent appealed from the final decree of the Probate Court of Talladega (Alabama), which allowed plaintiff administrator, Albert O. Kirksey, to retain the amount of a voucher together with interest for the amount of a promissory note for $4,000, which was purportedly signed by the decedent and was allegedly given for money loaned by the administrator to the decedent. The distributees argued that because the question of whether the signature on the promissory note was the decedent's was at issue, witnesses should not have been shown part of the signature and asked in whose handwriting the part shown was unless the whole name was shown to the witness.
Was it permissible for a party to show the witness a part of the signature if it was proven to be admissible?
The court held that if the signature was admissible, it was permissible for a party to show the witness a part of the signature. The distributees also argued that they should have been allowed to testify on the genuineness of the signature. The court held that Albert Kirksey, the administrator, was statutorily prohibited from testifying as to a transaction with the decedent; therefore, the distributees were also prohibited from testifying for the same purpose. The court noted that none of Albert’s witnesses stated positively that the handwriting in the signature was that of the decedent. On the other hand, four witnesses introduced by the distributees testified that the signature was not the decedent's and gave reasons for their conclusions. The court reversed the judgment because Albert did not meet his burden of proving that the signature was the decedent's.
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