It is apparent, however, from some of the cases that such an examination must have been permitted;for instance, in Fulton v. Hood (34th Penn. State Reports, 365), expert testimony was received in corroboration of positive evidence to prove that the whole of an instrument was written by the same hand, with the same ink, and at the same time. It is inconceivable how testimony of any value could be given as to the character of ink with which an instrument was written, unless it had been subjected to a chemical test. The writer of a valuable article in the eighteenth volume of the American Law Register, page 281 (R. U.
Piper, an eminent expert of Chicago, Ill.), in commenting upon the rule as stated in the case of Fulton v. Hood (supra), very properly says:
" 'Microscopical and chemical tests may be competent to settle the question, but these should not be received as evidence, I think, unless the expert is able to show to the court and the jury the actual results of his examination, and also to explain his methods, so that they can be fully understood.'
"The writer of this article is also authority for the statement that in the French Courts every manipulation or experiment necessary to elucidate the truth in the case, even to the destruction of the document in question, is allowed, the Court, as a matter of precaution, being first supplied with a certified copy of the same.
"The most obvious argument to be urged against allowing a chemical test to be made on a will, and one that was suggested by the court on the argument of this motion, is that, inasmuch as the paper may be the subject of future controversy in this or some other tribunal, future litigants should not be prejudiced by any alteration or manipulation of the instrument. I do not think, however, that this objection is sound. Take an extreme case, of permitting a sufficient amount of the ink (which the affidavit of the expert shows to be but infinitesimal)for the purpose of chemical examination; the form of the letter would remain upon the paper;if not, the form and appearance of the entire signature might, as a preliminary precaution, be preserved by photography. The portion of the signature remaining would afford ample material for future experiments and investigations in subsequent proceedings wherein it might be deemed advisable to take that course.
"Because the subject matter of the controversy may be litigated hereafter should not deprive parties in the proceeding of any rights which they would otherwise have. They certainly are entitled to all rights in this proceeding that the parties to any future proceedings would have. Besides, all the parties whose presence would be necessary to an adjudication in, for example, an ejectment proceeding, are (or their privies are) parties here. It certainly cannot be that the law, seeking the truth, will not avail itself of this scientific method of ascertaining the genuineness of the instrument because of some problematical effect upon the rights or opportunities of parties to future litigations respecting the same instrument. The possibilities of litigation over a will are almost infinite, and if such a rule should obtain this important channel of investigation would be closed. Suppose the same objection were raised to the first action of ejectment which might be brought, it might then with the same force be urged that parties to some future ejectment suit would be prejudiced by a chemical test of the ink used in the will, and so on ad infinitum.
"By not availing itself of this method of ascertaining the truth as to the character of the ink, the Court deprives itself of a species of evidence which amounts to practical demonstration.
"I can see no reason why the application should not be granted."The order in part reads:
"It is ordered and directed that Charles H.
Beckett, the special guardian aforesaid, be and he hereby is allowed permission to photograph the aforesaid paper writings described in said order to show cause, viz., one of the two parts of a triplicate Will of Thomas J. Monroe, deceased, dated February 10th, 1873, which were filed in the office of the Surrogate of the City and County of New York on or about the 9th day of May, 1889, and also the contested Will herein dated March 27th and June 1st, 1888, and to have the said paper writing, bearing date March 22d and June 1st, 1888, subjected to such chemical test or tests as shall disclose the nature of the composition of the ink and, if possible, the process or processes to which it has been subjected, if any.
"And it is further ordered and directed that such chemical test be applied to the ink or writing fluid on said alleged Will to the following specified portion, or any part of such portions, viz."Specifications in minute detail follow, calling attention to the words and spaces which are permitted to be chemically tested, and then continues:
"And it is further ordered and directed that the said paper writings shall be photographed before any chemical tests are applied thereto.
"And it is further ordered and directed that such photographing and chemical tests be performed by David N. Carvalho, Esq., a proper and suitable person, at the places above indicated respectively, between the 10th and the 20th days of June, 1889, inclusive, in the presence of the parties in interest or their attorneys, upon at least two days' notice to all parties herein or their attorneys.
"And it is further ordered and directed that in the event of destruction or breaking of the negatives after such paper writings have been photographed, the said special guardian, upon similar notice, shall have leave to re-photograph the said paper writings, at the same place and by the said David N. Carvalho, between the 10th and 20th days of June, 1889, inclusive.
