Home RICHARD M. SLETTERINK vs. MADELINE M. ROONEY & others.

1 Mass. App. Ct. 809

March 7, 1973

Four contestants have appealed from a decree of a Probate Court allowing a certain instrument as the will of Harold E. McDonough. The evidence is reported, but there are no findings. "Since the . . . [contestants] did not exercise . . . [their] privilege of requesting a report of material facts under G. L. c. 215, Section 11, and no voluntary findings of fact were made, the decision of the judge must be affirmed if it can be supported on any legal principal and was not, in our view of the evidence, plainly wrong." Duchesneau v. Jaskoviak, 360 Mass. 730 , 732. We have carefully reviewed the evidence on the issues of due execution, undue influence and testamentary capacity in the light of the burden of proof applicable to each such issue (see Tarricone v. Cummings, 340 Mass. 758 , 761-762, and cases cited) and cannot say that any of the findings implicit in the entry of the decree was wrong. The medical evidence to the effect that by reason of arteriosclerosis the decedent had been intermittently confused (but only infrequently disoriented) for several years prior to the execution of the will did not require the court to reject the testimony of the lawyer who drew the will (but was given nothing under it) or of the other two attesting witnesses to the effect that the decedent had the necessary capacity to make a will at the time of its execution. See Daly v. Hussey, 275 Mass. 28 , 29; Ware v. Morton, 288 Mass. 107 , 110. Cf. Morin v. Morin, 328 Mass. 33 , 35-36. The decree is affirmed, with counsel fees and expenses on appeal to be in the discretion of the Probate Court.

So ordered.

Home SYLVIA CASPER, executrix, vs. GEORGE LAVOIE.

1 Mass. App. Ct. 809

March 7, 1973

The plaintiff's only exception in this action of tort to recover damages for personal injuries sustained by her testate as a result of an automobile accident is to the exclusion, when offered by her on the issue of the

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defendant's liability, of all but the third sentence ([3]) of the following letter written by the defendant to the plaintiff's testate five days after the accident: "[1] I'm terribly sorry for all the trouble that I've caused you. [2] I worry so much that you'll be all right & I pray in church for you. [3] Please let me know how I can help you get your car fixed. [4] I feel so bad that sometimes I feel that my whole life is affected by this. [5] Sometimes I can't sleep. [6] Again I say that I'm sorry & I hope you will be all right." The plaintiff conceded at argument that she is not entitled to prevail on this exception unless every excluded portion of the letter was admissible in evidence (see H. E. Fletcher Co. v. Commonwealth, 350 Mass. 316 , 322-323, and cases cited). In our opinion the second, fourth and fifth sentences, if not the sixth, "carried no greater implication[s] of recognized liability than of regret, sympathy and benevolence" (Conti v. Brockton Ice & Coal Co. 295 Mass. 15 , 17) and were inadmissible for the purpose for which they were offered. See Wilson v. Daniels, 250 Mass. 359 , 364; Kindell v. Ayles, 263 Mass. 244 , 248; Rasimas v. Swan, 320 Mass. 60 , 61-62; Denton v. Park Hotel, Inc. 343 Mass. 524 , 528; Lyons v. Levine, 352 Mass. 769 ; Gallo v. Veliskakis, 357 Mass. 602 , 606. Cf. Eldridge v. Barton, 232 Mass. 183 , 186; Dennison v. Swerdlove, 250 Mass. 507 , 508-509; Jasman v. Meaney, 250 Mass. 576 , 577; Bernasconi v. Bassi, 261 Mass. 26 , 28; Tully v. Mandell, 269 Mass. 307 , 308-309; Woronka v. Sewall, 320 Mass. 362 , 364-367; Hartson v. Winship, 326 Mass. 380 , 382-383.

Exceptions overruled.