2 Mass. App. Ct. 837

May 13, 1974

This is an appeal from a final decree on a bill in equity for an accounting which ordered the defendant to pay the plaintiff a sum of money plus interest. The judge made a report of material facts. He made findings, supported by the evidence designated, that the plaintiff, then a partnership of physicians engaged in group practice (now a corporation), entered into an oral agreement with the defendant, an orthopedic surgeon, under which the defendant would practice his specialty with the group and would pay over to the partnership (now the plaintiff) all fees earned in such practice. The defendant in turn was to be paid a salary and be furnished office space, equipment, and staff. The contract was for an indefinite period and was terminable at the will of the parties. The defendant failed to pay over to the plaintiff some of the fees he received, the amounts of which are not now in question. The only questions for our decision are whether the contract was within the Statute of Frauds (G. L. c. 259, Section 1, Fifth) and whether, for that reason, we should order the dismissal of the plaintiff's bill. We hold that the contract was one capable of being performed within one year and thus not within the statute. Bolton v. Van Heusen, 249 Mass. 503, 506 (1924). National Overall Dry Cleaning Co. v. Yavner, 321 Mass. 434, 438 (1947). Dunne v. Fall River, 328 Mass. 332, 334 (1952). Williston, Contracts (3d ed.) Section 495. Contrary to the defendant's contention, the contract was not one for a period of time in excess of one year and subject to defeasance or cancellation within that time. This case is therefore distinguishable from cases such as Marble v. Clinton, 298 Mass. 87, 89 (1937) (dicta). See Williston, Contracts (3d ed.) Section 498A.

Decree affirmed with costs.


2 Mass. App. Ct. 837

May 16, 1974

Petitions for the allowance of three successive wills executed by John D'Ambrosio on December 12, 1966, August 21, 1968, and October 8, 1968, respectively, were heard together with a bill in equity brought by the special administrator of the estate to recover certain property belonging to the estate. The proponents of the

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second will appeal from final decrees disallowing that will and allowing the first will. The third will was also disallowed. We have the judge's report of material facts and a full transcript of the testimony before us, but though it is our duty to examine the evidence and decide the case upon our own judgment, we do not reverse findings of the judge based upon oral testimony unless convinced that they are plainly wrong. Cox v. Wall, 343 Mass. 542, 543 (1962). Consent to Adoption of a Minor, 363 Mass. 537, 539 (1973). There was uncontradicted evidence that the decedent was mentally competent at the time the first will was executed in 1966. However, the deceased's family physician, his then attorney, and his niece, all of whom had remained in close contact with the decedent for many years, testified that his mental and physical condition deteriorated rapidly commencing in late 1967 so that by 1968 he displayed considerable confusion of thought and suffered from the delusion that his niece was poisoning him. That evidence warranted the judge's conclusion that the deceased lacked the requisite soundness of mind at the time the second will was executed. See Duchesneau v. Jaskoviak, 360 Mass. 730, 732-733 (1972). The proponents of the second will failed to demonstrate the deceased's "freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property." See Goddard v. Dupree, 322 Mass. 247, 247-248, 250 (1948); Tarricone v. Cummings, 340 Mass. 758, 761 (1960). Here, the decedent's delusion that he was being poisoned by his niece concerned the very person who, as she had been rendering him daily care and assistance for more than ten years, would seem to have had the greatest claim to his bounty. Contrast Wellman v. Carter, 286 Mass. 237, 247 (1934). Because the proponent of the third will, who is also the defendant to the bill in equity, has not submitted a brief, we decline to disturb the decrees entered on those matters. Rule 1:13 of the Appeals Court, 1 Mass. App. Ct. 889 (1972). Leone v. Doran, 363 Mass. 1, 3-4 (1973).

Decrees affirmed.