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March 14, 1955


Appeal, No. 65, Jan. T., 1955, from decree of Court of Common Pleas of Lackawanna County, Jan. T., 1952, in Equity, No. 6, in case of Frank A. Obici, et al. v. Third National Bank & Trust Company of Scranton, et al. Decree affirmed.


Mitchell Jenkins, with him Maurice V. Cummings and Nicholas R. Degillio, for appellants.

Matthew D. Mackie, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 381 Pa. Page 185]


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 forgeries.

[ 381 Pa. Page 186]

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. McNickle, 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

[ 381 Pa. Page 187]

    of 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, 1946, 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. Mackie'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, 1946 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 signatures

[ 381 Pa. Page 188]

    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 ...

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