Opinion
May 21, 1940.
June 24, 1940.
Evidence — Witnesses — Rebuttal — Guess or supposition — Certainty.
Where, on the trial of an issue to determine whether or not the signature on the alleged will of a decedent was the genuine signature of the decedent, witness A, called by the contestants, testified that he was with decedent playing a particular game outdoors on the afternoon of the day when the will was alleged to have been signed by decedent at the home of one of the subscribing witnesses; and, to rebut this testimony, witness B, called by proponents, testified that A played in a different game on the afternoon in question and that he "guessed" and "supposed" the game was played on a stated day, and then further testified that he reported that game for a newspaper and that his account appeared in the paper on the following day, and a newspaper was produced supporting his statement; it was held that the witness's "guessing" and "supposing" the date in question was not prejudicial to contestants.
Argued May 21, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 132, Jan. T., 1940, from judgment of C. P. Northumberland Co., Dec. T., 1937, No. 498, in Estate of Constante Bridy or Constantine Bridy, deceased. Judgment affirmed.
Issue devisavit vel non. Before CUMMINGS, J.
The opinion of the Supreme Court states the facts.
Verdict for proponents, plaintiffs in issue, and judgment entered thereon. Defendants, contestants, appealed.
Errors assigned, among others, related to various portions of charge of trial judge, to affirmance of points for charge, various rulings on evidence, and refusal of motions for new trial and for judgment n. o. v.
Louis Silverman, with him Charles P. Mirarchi, for appellants.
Robert V. Moser, for appellees.
Constante Bridy died on July 25, 1937, and letters of administration were taken out on his estate, no will having been filed at that time. Less than a month later a will alleged to have been the last will and testament of Bridy was presented to the Register of Wills of Northumberland County for probate. A caveat was filed by Ben Bridy, a brother of Constante's, excepting to the probate of the will. In due course an issue was framed and certified to the Court of Common Pleas and tried. In substance it was this: "Whether or not the signature on the alleged last will and testament in question is the genuine signature of Constante Bridy." The proponents of the will were the decedent's stepchildren; the contestants were his brothers and a sister.
The alleged will's witnesses, Edward Kolovich and his wife, testified that the signature on the will was that of Constante Bridy. Proponents called two bank officials who qualified as handwriting experts and who testified that the same person wrote the signature "Constante Bridy" on the will that wrote the admittedly genuine Constante Bridy signatures on certain exhibits. On behalf of the contestants certain handwriting experts testified that they had compared the disputed signature with the admittedly genuine signatures of Constante Bridy and that in their opinion the alleged signature at the end of the will "was not written by the same person who signed that name on these undisputed documents, but was written by another person as a free-hand drawing in an attempt to simulate or copy or forge the signature of this party."
The witness to the will testified that Bridy signed it at their home on the afternoon of July 16, 1937. The contestants called several witnesses who testified that Bridy was elsewhere than at the Kolovich home on the afternoon in question. On this point, as on the question of the genuineness of the signature on the will, there was conflicting testimony. The jury found in favor of the proponents of the will.
In addition to the assignment of error based upon the contention that the verdict was against the weight of the evidence, there are assignments based on alleged errors in the charge of the court. One of these is that the court erred in permitting a witness for proponents to testify as an expert in handwriting when he was not so qualified. We find no merit in any of these assignments. Only a general exception was taken to the charge of the court by counsel on both sides.
The only assignment of error requiring discussion is the third which is based on part of the direct examination of Edward Tabachini. Felix Frank, a witness called by the contestants, testified that he was with Constante Bridy playing bocce all the afternoon of July 16, 1937, when the will was alleged to have been signed by Bridy at the Kolovich home. To rebut this testimony, Tabachini was called by the contestants to testify that Felix Frank played in a softball game for seven innings on that afternoon. At first this witness testified that he "guessed" the date of the game was July 16, 1937. This was objected to. The objection was not ruled on. The witness then said he "supposed" it was the 16th. But shortly afterwards he testified that he "wrote up" that game for a certain newspaper and his write-up appeared in the paper on the following day. This newspaper, being produced, bore the date of July 17, 1937. As this supported the inference that the game in question was played on July 16th, the witness's "guessing" and "supposing" the date did the contestants no harm.
The judgment is affirmed.