Probate Court, Conduct of hearing.
It was error for a judge of probate, hearing a petition for the proof of a will, after subscribing witnesses had testified that they saw the testator sign the will and a qualified handwriting expert, called by the respondent, had testified from an examination of the signature to the will and standards of his handwriting in evidence that the signature to the will was not that of the testator and had begun to give his reasons for his opinion, and the respondent's counsel had stated that he had a second expert to testify to the same effect, to rule that he had "made up" his mind and that "no expert is going to change my opinion on that matter", and that he was "satisfied from the evidence produced, regardless of what the expert witnesses" might say, that the testator "signed the will in the presence of these three witnesses"; and, on appeal by the respondent from a decree allowing the will, the decree was reversed and the petition remanded for further hearing in the Probate Court.
SANDERSON J.
This is an appeal from a decree of the Probate Court allowing an instrument as the will of Nannie E. Wyman. The appellant, who was not named therein, is the only heir at law and next of kin of the person whose name purports to be signed to the document. The sole contest related to the due execution of the instrument, the appellant contending that the signature was a forgery.
After the three subscribing witnesses had testified that they saw the testatrix sign the alleged will, the contestant without objection introduced standards of her signature and exhibited to the court photographs of the standards and an enlarged photograph of the questioned signature. The contestant then offered evidence through a handwriting expert, whose qualifications were admitted by the proponents, who testified that he had examined the signatures admitted as standards and the questioned signature, and as a result of microscopic study had reached the opinion that the signature to the will was not written by Nannie E. Wyman, but that it was a copy from one of the standards introduced in evidence, a simulated signature, a drawing. The witness then began to give his reasons for this opinion, and upon objection being made to certain of his statements the judge said in substance that from the testimony of the witnesses to the signature he had made up his mind that Mrs. Wyman had signed the will and that anything the witness on the stand and another expert in handwriting, whom the contestant desired to call, might say about the signature would not affect his decision on the matter and that it would be a waste of time to go on with this expert testimony. The contestant saved his exception to the statements of the judge and appealed from the decree approving and allowing the will.
The testimony of experts on handwriting was competent on the issue being tried. In Demerritt v. Randall, 116 Mass. 331, 332, in which a similar issue was involved, the court, speaking through Gray, C.J., said: "The experts were rightly permitted to testify to their opinion of the genuineness of the signature of the testatrix, and to their reasons for such opinion." See Richardson v. Newcomb, 21 Pick. 315; Marcy v. Barnes, 16 Gray, 161; Coddaire v. Sibley, 270 Mass. 41. The introduction of evidence of this nature might be the only method available to prove a forged signature to a will. In Wade v. Lobdell, 4 Cush. 510, 512, the court said: "If a court of probate must pass upon matters involving questions of fact . . . they must inquire into the truth of such facts judicially, and for that purpose admit all competent evidence. Were it otherwise, a paper, purporting to be signed by a party to be affected by it, must be taken not only to be genuine, but to be conclusive, without regard to the circumstances under which it was obtained." In Union Trust Co. v. Magenis, 266 Mass. 363, 365, the court said: "It is contrary to fundamental principles of administration of justice according to the common law to decline to hear all pertinent evidence offered by counsel." The duty of a magistrate to hear all competent evidence requires as a necessary incident of that duty that he shall hear the evidence with an open mind and not reach a final conclusion upon the issue until he has heard all evidence bearing upon it which a party is prepared to offer and has a right to introduce. In Dittemore v. Dickey, 249 Mass. 95, 100, the court, in referring to the duty of a master, said: "His mind ought always to be open to the truth and susceptible to every right influence flowing from the evidence." If a judge reaches a decision on an issue of fact before the testimony on that issue is completed and thus closes his mind to a fair consideration of competent evidence not yet heard, he has deprived the party of his right to a full and fair hearing upon the whole evidence. Even if the judge did not exclude testimony offered or forbid counsel to proceed further, his statement to the effect that he had made up his mind and was going to believe that the witnesses saw the woman sign and no expert could change that opinion made the introduction of further testimony from the handwriting experts a useless ceremony. A desire on the part of a judge to expedite trials and avoid a waste of time is commendable, but upon the facts disclosed by this record such a motive would not justify the trial judge in announcing his decision on the main issue in the case before he had fully heard competent testimony which the contestant was prepared and had a right to introduce.
Decree reversed. Case to stand for further hearing.