Estate of Sylvestri, In the Matter of

• Decision Date: 02 May 1978
• Citation: 376 N.E.2d 897,44 N.Y.2d 260,405 N.Y.S.2d 424
• Parties: , 376 N.E.2d 897 In the Matter of the ESTATE of Palma SYLVESTRI, Deceased. Louise PATTI, Appellant, v. Rocco J. SYLVESTRI et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 424

405 N.Y.S.2d 424

44 N.Y.2d 260, 376 N.E.2d 897

In the Matter of the ESTATE of Palma SYLVESTRI, Deceased.

Louise PATTI, Appellant, v. Rocco J. SYLVESTRI et al., Respondents.

Court of Appeals of New York.

May 2, 1978.

Samuel Lawrence Brennglass, New York City, for appellant.

Arthur Karger and Joseph W. Genzardi, New York City, for respondents.

OPINION OF THE COURT

JONES, Judge.

We hold that it was not error to affirm a Surrogate's Court jury's rejection of a will for lack of due execution based on testimony by a handwriting expert that the signature of the testatrix was not genuine in contradiction of the testimony of three disinterested, credible, attesting witnesses.

In the contest which followed the offer for probate of the alleged will of Palma Sylvestri the single issue submitted to the jury was whether the proponent, a daughter of the decedent and executrix and residuary legatee under the instrument, had established by a preponderance of the credible evidence that the instrument had been signed by her mother. On April 24, 1972, the date of execution appearing on the instrument, Palma Sylvestri was 87 years old, illiterate but able to understand and speak Italian and English, and able to be about. The will left bequests of $1,000 to five of decedent's seven children and to one grandchild and of $250 to each of seven other grandchildren; the residue was bequeathed to proponent, a daughter who lived next door to her mother and with whom the mother spent her daytime hours.

Witnesses produced by proponent included three attesting witnesses to the instrument, each of whom had been a member of the New York Bar for a number of years, who testified that on the date indicated the decedent had signed and acknowledged the instrument as her will in their presence and that they, at her request, had signed the same in the presence of each other. Each gave an account of the occasion on which the signing took place, describing the place, the persons present both then and in the minutes prior thereto, the physical arrangement of the decedent and witnesses at the table where the signing occurred, and the reading of the will to Mrs. Sylvestri and her response to questions concerning its contents. As to the details of the event, although the witnesses were in general agreement, there were some differences in the particulars to which they testified. One of the witnesses was the draftsman of the instrument and the other two had witnessed a prior will of the decedent executed in 1966 and a codicil executed in 1967. While the latter two attesting witnesses had known each other for several years, one of them had had no prior acquaintance with the third witness (the draftsman) and the other had not been introduced to him prior to the night on which they gathered for the will signing. The two witnesses had been asked to serve, not by the attorney-witness who had prepared the will, but by the son-in-law of the decedent, the husband of the proponent who was himself a member of the Bar.

To refute the attesting witnesses' testimony of due execution, the objectants called to the stand and qualified a handwriting expert who testified to having compared the signature on the offered instrument with signatures which were undisputedly those of the testatrix on exemplars received in evidence. On this predicate the witness expressed his opinion that the signature on the will had not been written by the same person who had written the signatures on the other papers. He testified in minute detail as to the comparison of distinguishing characteristics of the signatures on which he based his opinion.

In rebuttal proponent also called a handwriting expert, who expressed a contrary opinion that the same person who had signed certain exemplars had also signed the will. The effect of his testimony was somewhat weakened by the fact that, in the case of two other papers with which he had compared the signature on the will and on which he relied in part for his conclusion as to the genuineness of the testamentary signature, the testimony of other witnesses cast doubt on whether the compared signatures were indeed those of the testatrix.

Following submission to it of the issue of due execution the jury responded with a finding on a vote of five to one that the decedent had not signed the offered instrument. The proponent's motion to set aside the verdict as against the weight of the evidence was denied by the Surrogate, as had been her prior motion for a directed verdict. The Appellate Division upheld those dispositions in affirming the decree which denied probate on the ground that the paper propounded had not been duly executed by the decedent. We now affirm the order of the Appellate Division.

Appellant-proponent's principal argument in this court is that, on the evidence produced at the trial in support of the objection of lack of due execution, a directed verdict upholding the instrument should have been granted, because the negative testimony of the handwriting expert called by contestants was not sufficient to create a jury question in face of the positive testimony given by those who, if their testimony were credited, were attesting witnesses to the execution of Palma Sylvestri's will. Proponent would have us reject as inadequate to create an issue of credibility the opinion of objectant's handwriting expert, by adopting what is said to be a holding in some other jurisdictions "that the opinion evidence of experts, standing alone, is insufficient to sustain a finding of forgery in the face of direct and credible evidence of disinterested subscribing witnesses who testified that they saw the testator sign his name". ¹

Accepting for present purposes the view that the cases cited by objectants do in fact espouse the rule stated, we decline the invitation to adopt such a precept not heretofore applied by any of our appellate courts in this jurisdiction. While at one time the comparison of handwritings with an eye to determining genuineness of signatures was of questionable...