Gerson v. Gerson , 179 Md. 171 ( 1941 )

The contention of the appellant in this case is that five recorded instruments bearing her purported signature are all forgeries. The following are among the reasons why the story does not seem to me to be convincing:

First. The appellant swore that she never signed any deed or any other instrument prior to her husband's death, and that she had no knowledge whatever of any family settlement until more than a year after his death. There is no question, however, that she knew that her husband had made a will; she received the home and the furniture; and she knew that she had been devised the hotel, because she sold it and was paid for it by cash and note. Throughout the course of a year and a half, she never made any complaint about the operation of the garage by the appellees. It is difficult to believe that she had no knowledge that the garage had been conveyed.

Second. Joseph and Samuel Gerson had paid $100 per month as rent for the garage prior to the family settlement in March, 1938. Nothwithstanding that they continued to operate it, she never made any question thereafter about the rent.

Third. While she swore in the court below that she had never signed any of the five instruments, yet when she was asked whether it was true that she had told her lawyer from Baltimore that she had signed deeds for all of the properties, she answered: "Yes."

Fourth. When interrogated about the conference in the home of Milton Gerson, attorney, on March 17th, 1938, she admitted that she had attended the conference, but she swore that the conference was held about a month after her husband's death. Myer Gerson died on March 31st, 1938. His daughter, Mary Sherman, of Newark, New Jersey, testified that she came to Frostburg on March 4th, 1938, and it was in March that her step-mother came into the house after attending the conference and exclaimed: "I went to a meeting * * * and * * * everything is settled all right." Four witnesses corroborated Mrs. Sherman's statement that she was in the house on the day her step-mother came back from the conference. Mrs. Sherman also testified that she left Frostburg on April 1st, 1938, and did not return until about a year later.

Fifth. Milton Gerson testified that he retyped the second page of the will on March 17th, 1938, in order to make himself and Mrs. Gerson executor and executrix. Mrs. Gerson admitted that she had asked him who would serve as executor, and he replied: "Suppose I appoint you." She was then asked: "Was this before Myer died or afterward?" She answered: "After." This conversation could obviously not have occurred after the death of her husband.

I do not overlook the fact that a handwriting expert offered his opinion that the signatures on all five instruments were forgeries. But the courts have commented upon the inherent weakness of expert testimony. Often-times experts testify in support of a certain theory because of their ability to express opinions favorable to the party who calls them to the witness stand. Sometimes they receive fees which are far greater than the ordinary witness fees. Frequently their testimony appears to be largely the result of bias, which naturally results from their employment. In some instances experts of equal credibility and skill give contrary opinions. Consequently opinion evidence, while entitled to some weight, is not so conclusive that error is committed if the court refuses to follow it. There is no rule of law which requires judges or juries to relinquish their own judgment to accept the opinions of expert witnesses. The general rule is that opinions have only such probative value as they reasonably deserve under all the circumstances of the case. While expert testimony is an aid in determining an issue and cannot be arbitrarily ignored, the tribunals should be guided in making a decision by their common knowledge and experience as applied to the facts of the case, and they have a right to follow their own convictions, although their decision may be contrary to the opinion evidence of experts on the subject. United States v. Gower, 50 F.2d 370, 371; The Conqueror, 166 U.S. 110, 17 S. Ct. 510, 519, 41 L. Ed. 937; Dayton Power Light Co. v. Public UtilitiesCommission, 292 U.S. 290, 54 S. Ct. 647, 652, 78 L. Ed. 1267; 2Jones on Evidence, secs. 390, 391, 392, 556. The frequent use of evidence obtained from a comparison of handwriting indicates its importance in determining the issue as to the disputed validity of a written instrument, and the tendency of the courts in recent years has been toward according greater weight to it. Nevertheless, many courts have called such evidence "weak and unsatisfactory." 2 Jones on Evidence, sec. 556.

The appellant relied on the fact that one of the signatures is spelled "Fannie," while the others are spelled "Fanny." I do not attach great importance to this difference. The Gersons apparently did not pay much attention to spelling. The brief of the counsel on one side of the case refers to the appellant's husband as "Myer"; and the brief on the other side spells his name "Meyer"; while in the record it is "Myer" in some places and "Meyer" in others. I have examined the signatures on the original instruments. It is true that one differs from the others, but it is quite likely that the signature of an illiterate person may vary from time to time. Moreover, I notice that the signature which appears different from the others is similar to her signature on an identification card which she signed at the Fidelity Savings Bank of Frostburg.

In the present case the signatures of Fannie Gerson were witnessed by (1) an intimate friend, (2) a disinterested workman, who happened to be in the office at the time, (3) a member of the bar and (4) a notary public. Should we lightly brush aside all this evidence and make them liable to punishment for perjury? A certificate of acknowledgment by a notary public is proof of the execution of a deed, although not absolutely conclusive. Public policy forbids the certificate of such an official to be repudiated except upon the strongest evidence. Thus, when a person named as grantor in a deed swore that he had not signed it, and some of his handwriting experts testified that they believed the signature was a forgery, the Supreme Court of Appeals of West Virginia said that, inasmuch as four witnesses declared they saw the grantor deliver the deed to the grantee, the testimony of the grantor and his experts was not sufficient to justify a decree of annulment. The court held that where a certificate of acknowledgment is regular on its face, a strong presumption exists in favor of its truth, and the burden of proof is upon the party assailing it. While such a certificate may be impeached, the proof necessary to sustain such a charge must be of the clearest and most convincing character. Swiger v.Swiger, 58 W. Va. 119, 52 S.E. 23. Likewise, the Supreme Court of Illinois has declared: "Again, there is nothing that renders it at all probable that the notary public, who certified to the acknowledgement, would join in perpetrating a forgery. His certificate imports verity, and can not be overcome but by clear and satisfactory evidence. And the evidence of appellant, and the opinion of experts that the signature is not appellant's, are not sufficient." Tunison v. Chamblin, 88 Ill. 378, 388.

In Maryland the persons whom the Governor is directed by law to appoint, with the advice and consent of the Senate, as notaries public shall possess "known good character, and integrity and abilities." They must have resided in the State at least two years prior to their appointment. They are required to give bond with security to be approved by the Governor. They receive a commission signed by the Governor and the Secretary of State under the Great Seal of the State. They must subscribe to an oath of office before they are qualified to enter upon the discharge of their duties. Code, art. 68, sec. 1; art. 36, sec. 25. Miss Ruth L. Dicken, who has been serving as a notary public for more than twelve years, took the acknowledgment of Mrs. Gerson on three deeds on April 26th, 1938, and certified that the appellant personally appeared and acknowledged the instruments. Miss Dicken signed her name as notary public and attached her official seal on all three deeds. She testified that she recognized Mrs. Gerson and saw her sign her name to the deeds. Such written instruments should not be exposed to the danger of falsehood or the uncertainty of memory. When a duty has been laid upon a public officer, the presumption is that he has performed it according to law. Swiger v. Swiger,58 W. Va. 119, 52 S.E. 23, 30.

For these reasons I am unable to concur in the conclusion reached by the majority of the Court. I am authorized to say that Judge SLOAN concurs in this dissent.