Preston v. Peck

• Citation: 271 Mass. 159
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 04 April 1930
• Parties: JOHN I. PRESTON & another v. HARRY F. PECK.

271 Mass. 159

JOHN I. PRESTON & another v. HARRY F. PECK.

Supreme Judicial Court of Massachusetts, Middlesex.

April 4, 1930

March 4, 1930.

Present: RUGG, C.

J., CARROLL, WAIT SANDERSON, & FIELD, JJ.

Probate Court Conduct of hearing.

It was error for a judge of probate, hearing a petition for the proof of a will after subscribing witnesses had testified that they saw the testator sign the will and a qualified handwriting expert called by the respondent, had testified from an examination of the signature to the will and standards of his handwriting in evidence that the signature to the will was not that of the testator and had begun to give his reasons for his opinion, and the respondent's counsel had stated that he had a second expert to testify to the same effect, to rule that he had "made up" his mind and that "no expert is going to change my opinion on that matter" and that he was "satisfied from the evidence produced, regardless of what the expert witnesses" might say, that the testator "signed the will in the presence of these three witnesses"; and, on appeal by the respondent from a decree allowing the will, the decree was reversed and the petition remanded for further hearing in the Probate Court.

PETITION, filed in the Probate Court for the county of Middlesex on June 17, 1929, for proof of the will of Nannie E. Wyman, late of Lynnfield.

The petition was opposed by Harry F. Peck, a brother of the decedent, and was heard by Campbell, J., a stenographer having been appointed under the statute to take the evidence. The colloquy between the judge and counsel in the course of which the ruling was made and the exception saved as described in the opinion, was as follows: "The JUDGE. Well, I was just wondering how far I ought to be satisfied, regardless of what the expert will testify to, that three people have come here and committed perjury, and the expert is correct. That is the whole issue, is it not? The RESPONDENT'S COUNSEL. Yes, your Honor. The JUDGE. It simmers down to that, after all has been said, either these three people are perjurers because they have all testified they saw this woman sign her name to this will in question, or the expert is mistaken, because the expert comes in and say it is not her signature, that it is a forgery by someone. Should I, on the one hand, disregard the testimony of all three witnesses and believe that of the expert, regardless of what he says about it? The RESPONDENT'S COUNSEL. I suppose you have got to hear all the evidence, your Honor. The JUDGE. I suppose you are justified in not having me stop the matter. You have a right to put in whatever evidence you see fit, but I can frankly state now that I will be slow, to say the least, to disregard three witnesses in preference to one in regard to expert testimony on handwriting, and unless I change my mind considerably, I am inclined to take the testimony of the three living subscribing witnesses that they did see the parties sign the names. With that understanding, you have a right to proceed with the testimony, but I frankly say now that I cannot see my way clear, no matter what the expert witness says, to say that this woman did not sign that will. But, I do not mean by that that you must stop with your examination of this witness, but I thought I might as well tell you just how I felt about it, and I do not believe, no matter what he said, it would change my mind the slightest, and I would find that she did sign this will in the presence of these witnesses. I am just making that so there may be some time saved if you knew what I felt about it. The RESPONDENT'S COUNSEL. We not only have this handwriting expert, but we have Mr. Hingston, the other well known handwriting expert of Boston. The JUDGE. I do not question the experts' knowledge, but I cannot make myself believe that three people, who appear to me to be honest, with nothing at stake, are coming in here and deliberately perjuring themselves in a matter of this kind. If you can show me any motive why they should do it -- but none has been shown up to this time -- it might be a different matter, but without a motive for three people, who had not seen this testatrix in their lives, hardly, it seems so far fetched that I cannot make myself believe that I should throw their testimony out of the window and believe the expert witness. That is my feeling in the matter. The RESPONDENT'S COUNSEL.

I do not like to start to argue a case in the middle of it, but it has been my theory as I prepared for this case, that this typewritten will was probably drawn by Mr. Preston on the orders of Mrs Wyman, but she never got around to signing it, and I think if your Honor has the patience to listen to this expert he will show you how this thing -- The JUDGE. I have all the patience in the world, and have all the time necessary, but what is the use of going over the thing when my mind is already made up. I have made up my mind. I am going to believe the three witnesses did see the woman sign, and no expert is going to change my opinion on that matter, and that is a good way for it to go to the Supreme Court, if you would like to have it go there. That is all there is to it. . . . Perhaps I am taking a little unusual stand in the matter, but I cannot see the wisdom of listening to expert testimony when it is going right over my head, and I am satisfied that the witnesses did see the woman sign. What is the sense of going all over this and for me to sit here and just listen and listen and listen and by and by allow the will. I do not see much sense in doing that. I am satisfied that these three witnesses did not commit perjury here today, and, if that is so, what value is the expert...