2 Mass. App. Ct. 885

November 8, 1974

This is an action of tort for negligent operation of a motor vehicle. At the trial an expert witness, called by the defendant, was asked a series of questions during cross-examination as to whether he agreed or disagreed with statements which the examiner read from a dental treatise. The questions were asked without objection and were answered. The witness was then asked the title of the treatise. The defendant's objection to this question was overruled and the answer given. The witness was then asked: "So, in essence, doctor, what . . . [the treatise writer] is saying is that you shouldn't construct a lower denture against natural upper teeth." The defendant's objection was overruled, and the witness answered in the affirmative. The question merely paraphrased in non-technical language what had been read to the witness from the treatise. Although the treatise was not competent evidence, the name of its author had been indicated and the parts summarized had been read to the witness without objection. We fail to see how the defendant could have been harmed by the admission of such cumulative evidence which added nothing to that which was already in the case. Bendett v. Bendett, 315 Mass. 59, 65-66 (1943). The cases of Allen v. Boston Elev. Ry. 212 Mass. 191 (1912), and Percoco's Case, 273 Mass. 429 (1930), upon which the defendants rely, are distinguishable.

Exceptions overruled.


2 Mass. App. Ct. 885

November 11, 1974

This is an appeal from the allowance of an instrument offered for probate as the will of the decedent. The proponent, the named executor, is the attorney who drew the will, supervised its execution and was one of the attesting witnesses. The

Page 886

contestants claim that the proponent failed to sustain his burden of proving testamentary capacity (see Duchesneau v. Jaskoviak, 360 Mass. 730, 732-733 [1972]) and that certain evidence offered by the contestants was erroneously excluded. Since the contestants failed to request a report of material facts and no voluntary findings were made by the probate judge, his implied finding of testamentary capacity must be sustained unless, in our view of the evidence, which is reported, that finding was plainly wrong. Ibid. Sletternik v. Rooney, 1 Mass. App. Ct. 809 (1973). From our review of the evidence we conclude that the judge was not plainly wrong in finding that the requisites of testamentary capacity were sufficiently established. See Tarricone v. Cummings, 340 Mass. 758, 761 (1960), and cases cited. Medical and other evidence of the decedent's excessive drinking and eccentric behavior at times other than when the instrument was executed (see O'Brien v. Collins, 315 Mass. 429, 435 [1944]; compare Wellman v. Carter, 286 Mass. 237, 246, 247 [1934]) did not require that the judge reject the testimony of the proponent and the other two attesting witnesses that the decedent had the necessary capacity at the time of its execution. O'Brien v. Wellesley College, 346 Mass. 162, 170-171 (1963). Sletternick v. Rooney, supra. The evidentiary rulings of the judge are not shown to have been prejudicial to the contestants. The excluded evidence, sought in each instance to be introduced through the contestants' witnesses, was either merely cumulative (Bendett v. Bendett, 315 Mass. 59, 65-66 [1943]; Ross v. Nourse, 330 Mass. 666, 672 [1953]) or unaccompanied by an offer of proof. Ross v. Nourse, supra, at 670. Commonwealth v. Baker, 348 Mass. 60, 63 (1964), and cases cited. Cain v. Akikie, ante, 857 (1974).

Decree affirmed.