271 Mass. 159 | Mass. | 1930
This is an appeal from a decree of the Probate Court allowing an instrument as the will of Nannie E. Wyman. The appellant, who was not named therein, is the only heir at law and next of kin of the person whose name purports to be signed to the document. The sole contest related to the due execution of the instrument, the appellant contending that the signature was a forgery.
After the three subscribing witnesses had testified that they saw the testatrix sign the alleged will, the contestant without objection introduced standards of her signature and exhibited to the court photographs of the standards and an enlarged photograph of the questioned signature. The contestant then offered evidence through a handwriting expert, whose qualifications were admitted by the proponents, who testified that he had examined the signatures admitted as standards and the questioned signature, and as a result of microscopic study had reached the opinion that the signature to the will was not written by Nannie E. Wyman, but that it was a copy from one of the standards
The testimony of experts on handwriting was competent on the issue being tried. In Demerritt v. Randall, 116 Mass. 331, 332, in which a similar issue was involved, the court, speaking through Gray, C. J., said: “The experts were rightly permitted to testify to their opinion of the genuineness of the signature of the testatrix, and to their reasons for such opinion.” See Richardson v. Newcomb, 21 Pick. 315; Marcy v. Barnes, 16 Gray, 161; Coddaire v. Sibley, 270 Mass. 41. The introduction of evidence of this nature might be the only method available to prove a forged signature to a will. In Wade v. Lobdell, 4 Cush. 510, 512, the court said: “If a court of probate must pass upon matters involving questions of fact . . . they must inquire into the truth of such facts judicially, and for that purpose admit all competent evidence. Were it otherwise, a paper, purporting to be signed by a party to be affected by it, must be taken not only to be genuine, but to be conclusive, without regard to the circumstances under which it was obtained.” In Union Trust Co. v. Magenis, 266 Mass. 363, 365, the court said: “It is contrary to fundamental principles of administration of justice, according to the common law to decline to hear all pertinent evidence offered by counsel.” The duty of a magistrate to hear all competent evidence requires as a necessary incident of that duty that he shall hear the evidence with an open mind and not reach a final conclusion upon the issue until he has heard
Decree reversed.
Case to stand for further hearing.