Opinion
November 7, 1977
In a probate proceeding, the appeal is from a decree of the Surrogate's Court, Kings County, dated November 8, 1976, which, inter alia, directed that the instrument in question be admitted to probate, upon a directed verdict, after a jury trial. Decree reversed, on the law, with costs to both parties payable out of the estate (see SCPA 2304, subd 1, par [b], cls [i], [iii]; subd 3), and new trial granted. At the trial the proponent offered the testimony of the two subscribing witnesses to the will. They testified to all of the statutory requirements for the proper execution of the document. However, the objectant offered as proof the testimony of a handwriting expert who stated his opinion that the signature of the will was not made by the same hand as the signatures on several conceded exemplars of the decedent's signature. Despite the overwhelming proof that the will was properly executed by decedent, we believe that the issue of the credibility of the handwriting expert should properly have been left to the jury. However unlikely a verdict for the objectant is on these facts, it cannot be said, as a matter of law, that there is no issue of fact for resolution by a jury. Hopkins, J.P., Margett and O'Connor, JJ., concur; Damiani, J., dissents and votes to affirm the decree upon the opinion of Surrogate Sobel.