Obici v. Third National Bank & Trust Co.

Opinion by

Mr. Justice Allen M. Stearne,

■ ■ The sole issue raised by this appeal is whether-or not- the signatures- of -the - settlor on the purported Amendment to an inter vivos deed of trust were for: *186geries. The learned Chancellor who heard the testimony found that the signatures were genuine. He dismissed the complaint in equity which sought to set aside the document.

On January 13, 1945, Amedeo Obici erected two inter vivos trusts, one known as the “Friends and Relatives Trust” and the other named the “Charitable Trust”. The Third National Bank of Scranton, Pa., was the corporate trustee in both trusts. The individual co-trustees are Frank A. English, Ralph J. Lisman, Joseph Rocereto and C. H. Murden who are successors to Mario Peruzzi, the originally named co-trustee, after his death. The trustees are named as defendants. A brother, Frank A. Obici, and his children are the plaintiffs.

Under the terms of the “Friends and Relatives Trust” 1785 shares of the corporate stock of the Planters Nut & Chocolate Company were placed in trust. The settlor, Amedeo Obici, was to receive the income therefrom for life and upon his decease such income was to be distributed as set forth in a schedule attached to the deed. Among the named beneficiaries were the plaintiffs, with their respective interests specified. On or about April 19, 1946, the settlor executed an Amendment to the trust together with other documents whereby 650 shares of the 1785 shares of the corporate stock trust res were transferred from the “Friends and Relatives Trust” to the “Charitable Trust”. The effect of such Amendment was to eliminate from the trust the named plaintiffs as beneficiaries upon the death of settlor. The settlor died May 21, 1947.

The Chancellor found that Alonzo M. McNiekle, described as a specialist'in estate planning, had been employed by settlor • to assist him ' and his counsel, Matthew D. Mackie, Esq.,.in planning'the distribution *187of settlor’s vast estate. Mr. McNickle would receive instructions from settlor, whereupon Mr. McNickle would transmit the information to settlor’s counsel, Mr. Mackie, who in turn would prepare the necessary papers for execution and transmit them to Mr. McNickle, who supervised their execution by settlor.

The Chancellor found that on or about April 15, 1948, Mr. McNickle was called to settlor’s home at Suffolk, Virginia, by the settlor, and was requested by him to prepare changes in the “Friends and Relatives Trust”, removing plaintiffs as beneficiaries and transfer such shares to the “Charitable Trust”. Settlor also directed that his will be changed, bequeathing $1,000 to each of the plaintiffs. On April 18, 1946, Mr. McNickle went to Scranton to Mr. Maekie’s office and had him prepare the papers. On April 19, Mr. McNickle took the documents to settlor at the home of Mario Peruzzi, in Wilkes-Barre, where settlor executed them in the presence of Mr. McNickle. No one signed as an attesting witness. According to Mr. McNickle’s testimony, accepted as credible by the Chancellor, the will was dated April 20, 1946. The reason assigned by Mr. McNickle for the difference in dates of the questioned trust Amendment and the will was that April 19, 1948 was Good Friday and also because Mr. McNickle desired to have the changes in the trust agreement antedate the will “so that there would be no legal question as to the incorporation by reference in the will of the terms of the existing trust”.

Appellants charge that settlor’s name on the trust Amendment is forged. To overcome the force of Mr. McNickle’s testimony that he saw settlor affix his- signature- to the paper, appellants- point to many matters which they regard as suspicious,-. Furthermore, they produced a handwriting -expert and - several lay witnesses who- testified- that,- in .'their- .opinions, the signa*188tures of settlor were forged. Defendants also produced a handwriting expert and lay witnesses who testified that the signatures of settlor were genuine. The Chancellor found as a fact that settlor did execute the documents in his own handwriting. He accepted as credible the testimony of defendants’ witnesses.

Amedeo Obici’s signature appears twice on the Amendment, once as settlor and again as individual trustee. Two officials of the corporate trustee also affixed their signatures along with that of Mr. Obici. The Obici signature again appears twice on the letter to the corporate trustee authorizing the transfer of the 650 shares of stock from the “Friends and Relatives Trust” to the “Charitable Trust”. One of these two signatures is likewise written in the capacity of individual trustee.

This Court has held that the credibility of witnesses is a matter resting with the finders of fact. In Garrett Estate, 372 Pa. 438, 447, 94 A. 2d 357, we said: “. . Credibility of witnesses is always for the finders of fact: Nanty-Glo Boro. v. Amer. Surety Co., 309 Pa. 236, 163 A. 523. The disbelief of witnesses by a chancellor or . . . auditing judge which is approved by the court en banc, is conclusive on the appellate courts in the absence of proof of bias, prejudice, prejudgment, or capricious disbelief: Roberts Estate, 350 Pa. 467, 39 A. 2d 592; Osterling’s Estate, 323 Pa. 23, 185 A. 790; Pusey’s Estate, 321 Pa. 248, 184 A. 844’; Archer Estate, 363 Pa. 534, 70 A. 2d 857.”

• Unlike the situation in Young Estate, 347 Pa. 457, 32 A. 2d 901, the Chancellor in the present ease believed the testimony of Mr. McNickle who testified that he •saw settlor affix his signatures to the documents. This overcame any opinion evidence of expert and lay witnesses. In Pochron Will, 367 Pa. 306, 311, 80 A. 2d 794, we said: “The philosophy of the doctrine *189that opinion testimony alone will not overthrow testimony of actual fact is well expressed by Mr. Chief Justice Drew in Ray, to use, v. Philadelphia, 344 Pa. 439, 441, 442, 25 A. 2d 145: ‘An opinion is only that; it creates no fact. It is what someone thinks about something, and the thought may be precisely accurate or totally inaccurate, and yet represent the absolutely honest conviction of the person who expresses it. Because of this, opinion evidence is generally considered of a low grade, and not entitled to much weight against positive testimony of actual facts. There is a great difference between factual and opinion testimony. In the one the witness testifies to the fact and certifies that what he says of it is true. In the other, he only testifies to his opinion that such a thing is true, and certifies only to his integrity of belief. He says he believes his opinion to be correct, but he does not warrant it to be true, and does not pretend that he cannot be mistaken.’

“As the opinion evidence of contestants, standing alone, does not overcome the factual and unimpeached testimony of the three attesting witnesses (also supported by opinion evidence), proof of the forgery of testatrix’s signature to the questioned writing has not been established.”

In accepting as credible defendants’ evidence and rejecting that of plaintiffs’, the learned Chancellor states: “The signature of Amedeo Obici purported to be made on the amendment to the ‘Friends and Relatives Trust’ of April 19, 1946, is challenged as a forgery. In order to find such a fact the Chancellor would have to hold (1) that McNickle is a liar; (2) that McNickle is a forger, or (3) that Mackie, Attorney, is a forger, . . .

“The Chancellor can find no warrant in the evidence to make any such finding. To make such a find*190ing -would be to assume the existence of the most fantastic, improbable and senseless plot imaginable. . . .”

This Court has repeatedly held that suspicion and conjecture do not take the place of evidence: Rosenthal’s Estate, 339 Pa. 488, 496, 15 A. 2d 370; William Sellers & Co., Inc. v. Clarke-Harrison, Inc., 354 Pa. 109, 46 A. 2d 497; Lasky v. Paprocki, 363 Pa. 50, 68 A. 2d 593; Pochron Will, 367 Pa. 306, 80 A. 2d 794.

The decree is affirmed. Costs to be paid by appellants.