No. 32506 _
Albert
E. Ruble, Administrator C.T.A. of the Estate of Mary Alverta Green v. Albert
E. Ruble, Betty Ruble, Jacob Mullett, Jeremy Potter, Mark Cappillini, Brenda
Cappilllini, Steven Brannon, Christine Brannon, Robert DeClerico, and Philip
Richel c/o Herod Funeral Home, Maude Copeland, Donald Copeland, Kathryn Evans,
Betty Lou Green, James Green, Mary M. Bishop, Raymond Abernathy, Mary Margaret
Sullivan, Martha Lancaster, Inez Deeley, and all unknown heirs of the Estate
of Mary Alverta Green
Starcher, J., dissenting:
The majority
reversed this case by setting aside an experienced trial judge's
evidentiary ruling, when the judge was sitting as the trier of the facts. Judge
Stone found that a questioned notation in Mary Alverta Green's holographic
will leaving the residuary of her estate to “Albert & Betty Ruble,
617 Elmina St, Morgantown” was Ms. Green's handwriting and therefore a
valid portion of her will. This Court should have given deference to Judge
Stone's years of experience as a trial judge, and not have reversed the case.
In this
case, the trial judge compared the contested writing with writing to which the
parties agreed as being that of Ms. Green. When a writing that has been admitted
or proved to be that of the writer is available, it can be used as a standard
of comparison by the trier of fact in making a determination of the authenticity
of a contested writing, with or without the use of expert testimony. Young
v. Wheby, 126 W.Va. 741, 30 S.E.2d 6 (1944). Ultimately, it is the trier
of fact that determines the authenticity of disputed handwriting. W.Va. Code,
57-2-1 (1981).
The appellants
failed to employ a handwriting expert during the proceedings below. The appellants
allowed the trial judge to analyze the writing without the aid of an expert.
Then, when receiving an adverse ruling, they appealed to this Court.
The majority
opinion allows the appellants an undeserved second chance at
making their case. Accordingly, I dissent.