Wright v. Flynn

• Decision Date: 30 September 1905
• Citation: 61 A. 973,69 N.J.E. 753
• Parties: WRIGHT v. FLYNN.
• Court: New Jersey Supreme Court

61 A. 973

69 N.J.E. 753

WRIGHT

v. FLYNN.

Prerogative Court of New Jersey.

Sept. 30, 1905.

Application of Mary Flynn for the probate of a paper alleged to be the last will of Catharine Wright, deceased, to which Thomas Wright filed objections. From an order of the orphans' court admitting the paper to probate, objector appeals. Affirmed.

William B. Gourley, for appellant. J. W. De Yoe, for respondent.

MAGIE, Ordinary. This appeal brings in review a decree of the orphans' court admitting to probate a paper writing as the last will of Catharine Wright, deceased. The paper writing in question purports to be dated July 14, 1903, and to be signed by Catharine Wright and witnessed by Katie Flynn, a niece of Catharine Wright, and by Max Herrman, who was living in the same house in which Catharine Wright lived, although in a different apartment. Katie Flynn and Max Herrman were both produced as witnesses and testified in the orphans' court. There was no attestation clause attached to the paper writing; but I deem it clear that, if credence is given to their testimony, it was, on the day of its date, declared by Catharine Wright to be her last will, and it was executed by her with all the formalities required by our statute to constitute a valid testamentary disposition. The contention on the part of appellant is that the testimony of these witnesses is wholly unworthy of credit, and that the case shows that they, or one of them, fabricated the paper writing in question, including the signature of Catharine Wright thereto, and that they have conspired together to foist the same upon the court as genuine will. The learned judge of the orphans' court, before whom these witnesses testified, reached the conclusion that their evidence was worthy of credence. An appellate court, reviewing the case upon the evidence appearing in a transcript, ought not to pronounce the conclusions reached under such circumstances to be erroneous, unless clearly convinced of the error. As I do not find in the case sufficient proof of error to convince my judgment, the decree must be affirmed. For the benefit of counsel, I will briefly state my views on the points argued.

It is abundantly proved that on the day of the date of the paper Catharine Wright was a resident of Paterson, and that her niece, Katie Flynn, was living with her, being upon a visit to her, and that Max Herrman was resident in the same house. There was therefore an opportunity for the three persons to have met together, as sworn to by these witnesses. The attack upon the Instrument, and upon the credibility of the witnesses, is grounded upon indications upon the face of the writing, alleged to be observable upon inspection of it by common observation, or by observation directed by and disclosed upon the evidence of expert witnesses. The mere opinions of expert witnesses on handwriting, while admissible in evidence and to be considered by the court, ought not to be permitted to overcome the positive testimony of unimpeached witnesses. But the argument on the part of appellant in respect to expert evidence is properly presented. The claim is that such evidence opens to our observation what would not have been observed without the aid of examinations made by those who by practice and experience have acquired facility in such observations. I apprehend that this is the most important function of expert testimony, and that the weight and force of such evidence is dependable upon its exhibiting to our senses that which our unaided observation would not discover. To the arguments upon this line the counsel for appellant added arguments based upon the alleged improbability of the story of the attesting witnesses.

To make clear my conclusions, it is proper to state that the paper in question discloses to my observation the fact that the words "Paterson N Jersey July 14, 1903 I Catharne Wright," at its top, and the words "Catharine Wright 93 Frnt St. Paterson N Jersey," at the bottom, are in a handwriting different from that which has been used in the body of the instrument. Katie Flynn testifies that the words at the top and bottom, above quoted, were written by Catharine Wright herself, and the remainder of the writing, except the signature, "Max Herrman witness," was written by her at her aunt's dictation. Upon the evidence of the experts, I am able to observe that the signature of "Catharine Wright" at the bottom, and "Paterson N Jersey" thereunder, have been originally written with a somewhat pale ink, and then the lines overwritten with a somewhat darker ink. I am also able to observe, what would have probably escaped my observation unless I had been directed to it by their evidence, that in the parts of the paper which Katie Flynn claims to have written, many, and perhaps all, of the letters whose form requires them to extend below the line,...