Pepper v. Old Colony Trust Co.

Pierce, J. This is an appeal from a decree of the Probate Court for the County of Suffolk, entered December 5, 1924, denying a petition to vacate a decree of said court entered on April 5, 1924, admitting to probate the will of Rufus E. Lawrence which purported to have been executed on April 22, 1922. December 20,1922, the executor, Old Colony Trust Company, filed a petition for the probate of the said will. After a protracted hearing of several days at which the present appellant (the then contestant) was represented by counsel, the court entered a decree allowing the will. With the entry of the decree the judge made these findings of fact: "The testator spread the instrument upon a table or desk and in the presence of the three witnesses started to sign his name with his fountain pen, the pen ran dry before he concluded his signature; he called to Mrs. Stillings for ink, but the witness Feldman offered his fountain pen which the testator took and used to complete his signature. The three witnesses then signed their names to said instrument with Mr. Feldman’s pen in the presence of the testator and of each other.” The contestant appealed and her appeal was dismissed on November 13, 1924, for her failure to perfect the same. October 29, 1924, the appellant filed in the Probate Court this petition praying that the decree of April 5, 1924, be vacated because of newly discovered evidence which, she alleged, would establish that the signatures of the testator and of all three of the attesting witnesses were forgeries and that the instrument admitted to probate was not the one which the testator had actually signed on April 22, 1922. At the hearing on the petition to probate the will the validity of the signature of the testator was directly attacked as being a forgery; and the signatures of the witnesses were questioned, but without much examination or testimony of witnesses. At this hearing the judge refused to allow a chemical analysis of all the writings on the will other than the typewriting. At the hearing on the petition to vacate the decree the petitioner contended that signatures of the wit [535] nesses, as well as the signature of the testator, were forged, and offered to prove the alleged fact in the presence of. the judge by the application of chemicals to the ink in the signatures, and the examination of such signatures under a compound microscope. The judge refused to permit the experiment and the only question before this court on the present appeal is, Was such action a failure to exercise judicial discretion? After a careful examination of the evidence reported in the record, we think it cannot be said rightly that the re-j ection of the chemical experiment was clearly wrong. Commonwealth v. Tucker, 189 Mass. 457. Dow v. Bulfinch, 192 Mass. 281. McCarthy v. Curry, 240 Mass. 442. The judge saw the witnesses at the trial and was satisfied that notwithstanding the additional evidence the decree ought to stand. Powers v. Bergman, 210 Mass. 346. Decree affirmed.