Cutler Estate, 33 Pa. D. & C.2d 682

Burke, J., Exceptions were taken to the decree of the learned hearing judge dismissing an appeal admitting to probate a writing dated September 25, 1960, purporting to be the last will and testament of decedent. The disputed document provides as follows: “To ^iftag-Ba-wson, Jr. TO WHOM IT MAY CONCERN SEPT. 25th 1960 I WANT MY DAUGHTER MABEL NUGENT TO HAVE MY 15,000 DOLLARS THAT IS IN MY SAFE DEPOSIT BOX. (Signed) Paul D. Cutler WITNESS (Signed) David S. Thompson” The document was typewritten on a brown press-board card, 5%" by 2%". It appears that the card was cut from a Manila envelope with scissors.

Decedent, a widower, was 82 years of age and had been employed in a minor clerical capacity for many years by the Automatic Fire Alarm Company, in its office in the Bourse Building, Philadelphia, Pa. His associate in the office was David Thompson with whom he had had an intimate association for over three years, by reason of their having worked together on the same shifts. The quiescence of the night shift was conducive to conversations of a personal nature. Decedent had discussed his daughter, Mabel Nugent, with Thompson and his intention to leave her his cash in a safe deposit box.

He also had mentioned an Olive Strickland, a lady friend, who also had access to the safe deposit box. Decedent had written a will giving the cash to his said daughter and had shown it to Thompson. Early in the morning of September 25, 1960, when decedent, and Thompson were alone, Thompson heard decedent using the typewriter in an adjoining room. Decedent then came to Thompson and exhibited the disputed document to him which decedent had already signed in pencil and asked that he read it and act as a witness.

Thompson noted that the text was almost identical with that of an earlier will, favoring the daughter, which decedent said he had lost. After reading the document, Thompson signed as a witness. This document was contested by Olive Strickland, the principal legatee in a will dated May 1, 1954, which had been probated and the Register of Wills, after extensive hearings, probated the disputed document, by decree dated September 11, 1962, from which an appeal was taken.

The cardinal point of exceptant’s case is forgery by typewriter; specifically, that the will was typed over a preexisting pencilled signature of decedent, which is admittedly genuine, and that the body of the will was prepared by or on behalf of decedent’s daughter subsequent to the date shown. The contestant adduced the testimony of an employe of the typewriter repair company and also offered in evidence the company’s invoices which lacked specificity with respect to the existing defects and noted corrections.

The witnesses testified merely to the usual services performed in such instances without direct testimony on the subject typewriter. Exceptant produced testimony by a Mr. Osborn, an examiner of disputed documents, to the effect that the will could not have been typed on September 25, 1960. His opinion was founded on defects in the typewriter which allegedly first appeared after the machine was repaired on November 30, 1960, but which he claims also appear in the disputed will. The defects he noted were horizontal and vertical alignments.

He contended that it would be improbable for the defects which appear after repair, to have been present before repair. In the conduct of his comparative studies of pertinent documents, Mr. Osborn analysed cards written on the subject typewriter made before September 25, 1960. It was the custom of one Andrew Keaveney, an employe of Automatic Fire Alarm Company, to type cards for his information, in the ordering of service for customers and the date of installation of service. These cards were typed and dated on the receipt of the order and were then filed.

The cards were reinserted in the typewriter and dated when the service was installed. Mr. Osborn testified that upon the reinsertion of the cards it was highly improbable that the same alignment of the later typing could be in alignment with the initial typewriting. Keaveney appeared as a witness for the proponent, and gave a demonstration in the court room by making an initial typewriting, removing the card and adding additional typewriting. The alignments were then checked with a measuring glass, having minute graduations. The demonstrations were made on four cards on one of which Mr.

Osborn, by use of his measuring glass, could find no deviation, while on the remaining three it was minimal. The hearing judge, with the aid of the measuring glass, also studied the demonstration cards, but found no deviations in the alignments. During the course of the hearing held on March 14, 1963, Mr. Osborn made a casual reference to a will of decedent, dated December 14, 1959. This document was lodged in a safe deposit box under the control of the contestant.

Up to that time nothing had been heard about such a document and the hearing judge immediately directed both parties to go to the box and return with the document. During the course of the hearings Mr. Osborn never testified to any comparative study he made between the typewritings on the 1959. document and the disputed will. The document is a lined file card of heavy paper, 6 by 3 inches. On one side the following typewriting appears: “TO WHOM IT CONCERN. SAFE DEPOSIT BOX 1858 MY CO SIGNER IS MR. L. W. THOMASON WITH THE ASS'ISTENT OF MRS. OLIVE A. STRICKLAND 5630 HATFIELD ST. WEST PHILA. PA.

SIGN BYME May 14, 1957 (Signed) Paul D. Cutler (Written) Box 1858 (written) Over the other side.” On the obverse side the following handwriting appears : “To Whom Concern. The money in this box to be given to Mrs. Olive A. Strickland 5630 Hatfield Sign Date 3. 1959 Paul D. Cutler 12-21-1959” There was a holographic will dated May 1, 1954, written on the stationery of the Automatic Fire Alarm Company which was probated on June 20, 1961, one day following decedent’s burial. It provided: “To Whom Concern 5-1-1954 The amount of money in this box is to go to Mrs. Olive A. Strickland #5630 Hatfield St. West Phila.

Phone Sa 9-5019 This is my request in case of My Death. (Signed) Paul Cutler 67 High #94 E. Haies--- Germantown Pa. 44 1st Floor Apt. East.” A comparison of the type print on the 1959 document with the disputed document (1960), reveals similarities which are noted by the learned hearing judge in his opinion at page 7, as follows: 1. Both instruments are typed on heavier than ordinary writing paper, one being of pressboard type material and the other cut down from a larger filing card; 2. Both instruments are almost exactly the same width and length, the 1959 will being wider but shorter; 3.

Both instruments have been hand cut from a larger material surface in that four edges of the September 25, 1960, writing are unevenly cut (N.T. p. 189), whereas two and possibly three edges of the 1959 paper bear this same characteristic; 4. Both instruments have been signed “Paul D. Cutler”; 5. Both instruments are almost exactly the same in content with the exception of beneficiary designation; 6. Both instruments have some identical typing features; as to the 1959 will, these appear on other side of will and bear a 1957 date—for example, observe (

a) that typewritten portion of both instruments slants upward from left to right and (

b) letter alignment in both instruments of “ER” in “CONCERN” is identical, and (

c) capital “I” is used for figure “one” instead of “1”. A comparison of the phraseology in the 1954, 1959 and 1960 documents is revealing as to the identity of the scrivener. The salutations are: In the 1954 document: “To whom concern.” In the 1959 document it is “To whom concern”, and on the obverse side the typed script is “To whom it Concern”, and in the 1960 document “To whom it may concern”. On the obverse side of the 1959 document (typewritten instructions relating to the safe-deposit box) “safe-deposit is spelled without a hyphen as it is in the 1960 document.

It is also noted that in both the 1959 document (typewritten side), and the 1960 document the capital “ (i) ” is used in place of the numeral “one”. The consistency of the grammatical and typewritten errors in the three writings is persuasive of testator’s authorship of the disputed will. Decedent was buried on June 19, 1961, and Mabel Nugent, decedent’s daughter, went to his apartment on High Street, Germantown, on June 20, 1961, to inspect his furnishings. She found several end-tables, two mirrors and a picture of her grandmother, which were placed in her husband’s car.

The following day she removed the furnishings to her own car for later transportation to her Wildwood, New Jersey, apartment. This furniture was driven to Wildwood on the evening of June 23rd and unloaded on June 24, 1961. Mrs. Nugent, who operated an apartment house in Wildwood, had a maid and a handyman employed to assist her in the operation of the apartments. On June 24th she arranged for the handyman to unload the car containing the furniture. The handyman in unloading the mirrors, called to Mrs. Nugent about an envelope attached to the back of one mirror.

He brought the mirror into the apartment house and she, noting an accumulation of dirt on the reverse side of the mirror, stated that she would clean it. She then noted an envelope of the Automatic Fire Alarm Company attached with thumb tacks, and asked the maid to get her a knife to help remove the tacks.

Upon removal of the envelope and an examination of the contents, she described what appeared to be her father’s will, and announced to her husband, the maid and the handyman, that “my father left me a will.” At the time of its discovery it was approaching the closing hour of the postoffice; she hurriedly went to the postoffice and mailed the disputed document to Mr. Starling, her attorney in Philadelphia. The exceptant infers that the disputed document was contrived through the machinations of Mrs. Nugent and the other witnesses to the discovery of the document on June 24, 1961.

Three of the four witnesses testified, and their testimony was uncontradicted and unqualified after rigorous cross-examination. The exceptant also implied that Mrs. Nugent, having gone to her father’s office and examined the contents of his locker, after being advised by an attending nurse that he was in extremis, was in a position to fabricate a will favorable to her. The testimony does show that Mrs. Nugent went to her father’s office on June 13, 1961, and examined the contents of his locker. However, at such examination she was accompanied by Mr. Curran, an executive of the company, and Mrs.

Schaffer, an executive’s secretary, and it is not susceptible of belief that those persons would have permitted the removal of any documents prior to the appointment of a fiduciary. In addition, it is not likely that between June 20th and 24th, Mrs. Nugent could have conspired with two strangers to compose a spurious will. Any contrary inference is rebutted by the lexical and typing patterns of decedent as expressed in previously written documents and discussed hereinabove. To suggest that Mrs. Nugent had any association with the fabricating of the 1960 document is inane.

The record does not disclose that she had any knowledge of her father’s grammatical and typewriting deficiencies, as shown in the 1959 documents, prior to March 14, 1963, when it was disclosed for the first time, after having been in the sole possession of ex-ceptant. Exceptant’s case rests solely on conjecture and suspicion. In Obici v. Third National Bank & Trust Company of Scranton, 381 Pa. 184, 190 (1955), the court said: “This Court has repeatedly held that suspicion and conjecture do not take the place of evidence : [citing cases].” Mr.

Thompson, the subscribing witness to the disputed document, made a favorable impression on the hearing judge. He had testified before the Register of Wills and twice before the hearing judge, and his testimony was unshaken after brisk cross-examination. He is a disinterested witness, and having been a subscribing witness to the disputed document, our decisional law accords much greater weight to his testimony than that of opinion evidence.

In Kadilak Will, 405 Pa. 238, 243 (1961), the court said: “The party relying on fraud or forgery has the burden of proving the facts upon which the alleged fraud or forgery is based, and these facts must be proved by evidence which is clear, direct, precise and convincing: [citing cases]. “Moreover, opinion evidence of an expert, whether he be a doctor or any other kind of expert, is, in cases of forgery, undue influence, mental capacity and insanity, of very little weight and cannot prevail against direct factual credible evidence: [citing cases].” The record supplies abundant evidence to support the findings of fact and the conclusions of law of the hearing judge.

Where an auditing judge sees and hears the witnesses, it is for him to determine their credibility and the weight to be given to their testimony, because of their character, intelligence and knowledge of the subject, and his findings, like those of a jury, will not be disturbed except for clear error: Roberts Estate, 350 Pa. 467 (1944). May 15, 1964. For the foregoing reasons the exceptions are dismissed.