Opinion
March 28, 1963.
Sadie Lipner Shulman for the contestants.
Melvin A. Cherwin ( George J. Shagory with him) for the proponents.
Decree affirmed. No error is shown in the decree of the Probate Court for Suffolk County which allowed the last will of Edward Esa executed July 6, 1960. Testimony of a handwriting expert as well as the appearance of the will support the view that the testator used two different pens in executing the will and that some of the five sheets of paper on which it is written were of different lots. This evidence and the testimony of the expert of a tremor in the signatures in the margin of two pages, which were written, in her view, with a ball point pen, and also on checks which she used as standards, and that the other signatures on the will did not show this tremor, did not require rejection of the testimony of the three attorneys who were the attesting witnesses. They testified that all the testator's signatures were placed on the will at one time and in their presence. That the witnesses did not recall the use of two pens or recalled that only one was used did not discredit their other testimony. The evidence permitted the conclusion of due execution and we cannot say that the judge was plainly wrong. It was not error to exclude the question to the expert whether she had an opinion "with respect to the composition of this instrument." No subject for expert testimony is suggested by this obscure inquiry. It was not error to permit the proponents to put in evidence copies of two prior wills which the contestants' attorney asked to see, and inspected, and about which the attorney asked questions, in one case before, and in the other case after, inspection.