McInerney v. Meszaros (In re Astolas' Estate)

• Decision Date: 14 October 1935
• Docket Number: No. 78.,78.
• Citation: 273 Mich. 189,262 N.W. 766
• Parties: In re ASTOLAS' ESTATE. McINERNEY v. MESZAROS.
• Court: Michigan Supreme Court

273 Mich. 189

262 N.W. 766

In re ASTOLAS' ESTATE.McINERNEY

v.MESZAROS.

No. 78.

Supreme Court of Michigan.

Oct. 14, 1935.

Proceedings for the probate of the will of Theresa Astolas, deceased. From a judgment in favor of the contestant, Steve Meszaros, guardian of Steve Astolas, Anna Astolas, and Joseph Astolas, minors, denying the probate, the proponents appeal.

Reversed and remanded.

Appeal from Circuit Court, Wayne County; Lester S. Moll, judge.

Argued before the Entire Benth.

Henry Stone, of Detroit, for appellants.

James M. Cleary, of Detroit, for appellee.

POTTER, Chief Justice.

This case involves the validity of the last will and testament of Theresa Astolas. Proponents offered proof testatrix signed her will by mark. Contestant produced a professional handwriting expert, whereupon the following occurred:

‘Q. Can you tell by looking at these signatures there and that ‘X’ mark, whether or not those writings are made by the same person or not; and if you can, what is your reason for so stating? A. Yes. * * * I find that the cross mark contains the same habits as I find in the signature in regard to the pen pressure or line quality, that is, the smoothness of line, and also in its slope. The signature is written automatically, and the cross mark is written also automatically, that is offhand. is written also automatically, that is off-hand. on this comparison with the ‘X’ marked, that ‘X’ written by the same hand that wrote the name ‘Tracey Astolas,’ and ‘Her Mark.’ There is no doubt in my mind that it is the same handwriting and written with the same ink. * * * I base my opinion on the fact that a person of that age and her education would not make a mark similar to this. If she was competent to make a mark, it would contain her habits and not the habits of the writer of that name, ‘Tracey Astolas.”

The witness gave it as his opinion the testatrix did not sign the will in question by mark.

‘Q. Is it your opinion * * * that this mark could not be made by a woman 54 years old in as perfect a condition as that mark is, that couldn't read or write the English language? A. Yes, sir.’

Proper objections were made to the introduction of all this testimony. Proponents assigned appropriate errors in their reasons and grounds of appeal. In submitting the case to the jury, the court charged:

‘Ordinarily a witness must testify to matters within his observation; he cannot testify to opinions; he cannot testify as to conclusions. But there is a different rule in the case of a so-called expert, that is, somebody that does or is claimed to have unusual knowledge of a certain subject. For instance, the civil engineer, on matters of engineering; the doctors, on matters of medicine, anatomy, and so forth. And the law permits a so-called expert to express an opinion or to give his conclusions from certain facts, provided he is a competent expert. But the weight of the opinion is for the jury, and you regard the testimony of an expert just as you do the testimony of any other witness.

‘Now, it is true, a doctor will give you, for instance, the cause of death of a person, as strangulation, heart block, internal hemorrhage following gunshot wound, or any one of a multitude of things. That might be a subject of dispute. What does the layman know about it? You would not know; I would not know whether he died of concussion of the brain or anything else, do you see? Now, the so-called medical expert gives his opinion, we will say, on the cause of death; but the witness is required to lay down the basis of the facts on which he gives an opinion. It is for you to say how good, or how not so good that opinion is. Look at his testimony, the testimony of an expert just as you look at the testimony of any other witness; judge it by the same standards.’

There is no claim the expert witness offered was acquainted with testatrix; had ever seen her write; or had ever seen her genuine mark. The basis of his opinion was the testatrix was 54 years of age and unfamiliar with the English language. In his testimony after recess, he added another reason for his conclusion, that the cross was made rapidly by an accustomed hand.

The question of expert testimony on handwriting was considered in Vinton v. Peck, 14 Mich. 287, and I can add nothing of importance to the opinion rendered therein.

‘Every one knows how very unsafe it is to rely upon any one's opinions concerning the niceties of penmanship. The introduction of professional experts has only added to the mischief, instead of palliating it, and the results of litigation have shown that these are often the merest pretenders to knowledge, whose notions are pure speculation. Opinions are necessarily received, and may be valuable, but at best this kind of testimony is a necessary evil.’ In re Foster's Will, 34 Mich. 21.

‘Expert evidence is only admissible on the theory that the jury cannot be supposed to comprehend the significance of facts shown by other testimony which needs scientific or peculiar explanation by those who comprehend it.’ People v. Millard, 53 Mich. 63, 75, 18 N. W. 562, 567.

Where the court or jury may make their own deductions, they must not be made by the witness. Bockoff v. Curtis, 241 Mich. 553, 217 N. W. 750.

Witnesses generally must testify to the facts upon which their opinions are based; and their opinions are no stronger than the facts upon which they are based. In re Lembrich's Estate, 243 Mich. 39, 219 N. W. 707.

‘The primary rule, concerning all evidence, is, that personal knowledge of such facts as a court or jury may be called upon to consider, should be required of all witnesses, where it is attainable.’ Evans v. People, 12 Mich. 27.

‘The experience of courts with the testimony of experts has not been such as to impress them with the conviction that the scope of such proofs should be extended.’ People v. Morrigan, 29 Mich. 4.

A mark is not handwriting. It is ordinarily used because the signing party cannot write. Even people 54 years of age may move rapidly and use an accustomed hand. Those speaking the English language have no monopoly of the ability to make a cross.

In Thompson v. Davitte, 59 Ga. 472, the court said of the mark of a witness to a will: ‘The Code (section 2415) pronounces a mark sufficient, on the sole condition that the witness shall be able to swear to it. This is all the heraldry of the matter. Nothing like a system of crests or bearings is contemplated; not even any special hook or claw on which the mind can hang recognition. As best it can, the memory may lay hold, and hold on, and the conscience swear to it. A court cannot declare any peculiarity necessary, where the witness needs none. It is not improbable that those who make marks for default of skill in making letters, have an aptitude of their own in distinguishing marks that to ordinary eyes look alike. The faculty may be something like that of supplying an absent sense, by novel and ingenious applications of one or more of the remaining senses.’

In Phoenix National Bank v. Taylor, 113 Ky. 61, 67 S. W. 27, 30, where a signature by mark was in dispute and other documents signed by the mark of the party were admitted for comparison, it was said: ‘We are unable to perceive where any legitimate help or light could be thrown upon the matter in dispute by the comparing of the characteristics of the two handwritings. It is that peculiar characteristic attaching to the mechanical formation of letters by which they may be identified as having been made by one particular person that justifies admitting other handwriting of the same party for comparison to prove that the disputed one was probably executed by the same person who wrote the genuine ones. We are therefore of the opinion that none of the signatures to the mortgages in question (unless it be the one of June, 1899) should have been submitted to the jury.’

Where one testified he signed a mortgage by his mark, but did not identify the paper in dispute as having been the paper signed by him, it was held not to have been properly executed because not properly proved. Ballow v. Collins et al., 139 Ala. 543, 36 So. 712.

In Fogg v. Dennis, 3 Humph. (Tenn.) 47, a son was permitted, from his acquaintance with the peculiar manner of making his mark for a signature by often seeing him do it, to give his opinion the controverted signature of his father was genuine.

In Strong's Ex'rs v. Brewer, 17 Ala. 706, the question of the testimony of experts as to signatures by mark was considered by the court. It was there said: ‘The general rule, which admits of proof of the hand-writing of a party, is founded on the reason, that in every person's manner of writing there is a peculiar prevailing character, which distinguishes it from the hand-writing of every other person, and therefore, that one, who knows the hand-writing of the party, is competent to testify to it. This kind of evidence too, like all other probable evidence, admits of every degree, from the lowest presumption to the highest moral certainty. 1 Phil. Ev., 484. The degree of weight to be attached to it depends not only upon the character of the witness, but also upon the opportunity he has had of acquiring a knowledge of the party's hand-writing. It may be more difficult to acquire a knowledge of a simple mark, by which an illiterate man executes a deed, than the knowledge of the hand-writing of one, who can write his name in full, but we cannot perceive why it may not be done. In some instances, the peculiarity may be as strong as that which marks the characters of one who can write, and in other instances, not perhaps so great; yet in all, we apprehend, would be found something distinct and peculiar, which would enable one, who had frequently seen the party make his mark, to know it. We can, therefore, see no reason why one, who has frequently seen a party make his mark to deeds or other writings, and who can testify that he believes that he knows it, may not be permitted...