Home ARTHUR W. D. CONWAY vs. ELISE M. OTIS & others.

3 Mass. App. Ct. 702

January 30, 1975

This is an appeal from a decree of a Probate Court in which title to land claimed by the plaintiff by right of adverse possession was determined to be in the defendant. The evidence is not reported; no report of material facts was requested and no voluntary findings of fact were made by the judge. The only question presented upon the record before us is whether the final decree fell within the scope of the pleadings. The defendant, in her answer by way of counterclaim, asserted her ownership in the land and prayed that a decree be entered establishing her title thereto. The entry of the decree imported a finding by the judge of every fact required to support it. Home Ins. Co. v. Marino, 359 Mass. 748 (1971). Herbits v. High-Speed Process Printing Corp. 1 Mass. App. Ct. 879 (1974), and cases cited.

Decree affirmed.

Home MARGARET ASACK & others vs. LOUIS ASACK & others.

3 Mass. App. Ct. 702

January 30, 1975

After an extensive hearing a judge of a Probate Court entered a decree allowing the will of Adele Asack, late of Brockton. 1. A review of the evidence discloses that the judge's findings (implicit in the entry of the decree) on the issues of due execution, testamentary capacity, and undue influence were not plainly wrong. Montgomery v. von Metzler, 2 Mass. App. Ct. 885 (1974). 2. There was sufficient evidence that Dr. Masurkie was an attending physician so that his opinions as to the testatrix's mental capacity at times shortly before and after the execution of the will were properly admitted. Hastings v. Rider, 99 Mass. 622 , 625 (1868). The number of times that Dr. Masurkie had seen the testatrix and the length of time during which she had been his patient went to the weight rather than to the competency of his testimony. Id. at 627.

Decree affirmed.

Home DONALD R. KELLY vs. CECELIA B. KELLY.

3 Mass. App. Ct. 702

January 31, 1975

This is an appeal from a final decree dismissing the plaintiff's bill in equity field in Superior Court. The case had been referred to a master. The master reported that the plaintiff repeatedly failed to appear without adequate cause at the hearings scheduled before him, although the hearings were continued from time to time either at the request of counsel for the plaintiff or to afford the plaintiff additional opportunity to appear. The master purported to enter a nonsuit, which we assume was treated as a recommendation that the bill be dismissed for want of prosecution. Cf. Fratantonio v. Atlantic Refining Co. 297 Mass. 21 , 22 (1937). The master's report was confirmed and no appeal was taken

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from the decree confirming the report. "Thus the findings of fact made by the master become conclusive between the parties." Samuel & Nathan E. Goldstein, Inc. v. Dietz, 284 Mass. 548 , 549 (1933). Perry v. Oliver, 317 Mass. 538 , at 538 (1945). Blanchette v. Blanchette, 362 Mass. 518 , 519 (1972). The plaintiff filed in the Superior Court a "Motion to Remove Non-suit." Although the court did not enter a "nonsuit," we regard one as having been impliedly made upon confirmation of the master's report. Cf. Ryan v. Brennan, 1 Mass. App. Ct. 469 , 473 (1973). The plaintiff's motion was denied and the final decree dismissing the bill was entered. The only question presented by this appeal from the final decree is whether the decree is supported by the facts set forth in the master's report. See Samuel & Nathan E. Goldstein; Inc. v. Dietz, supra, at 549. See also Pevey v. McGrath, 243 Mass. 451 , 454 (1923). The plaintiff's failure to prosecute his action is amply demonstrated in the master's report, and there was no error in the denial of the "Motion to Remove Non-suit" or in the entry of the final decree dismissing the bill. Cf. Fratantonio v. Atlantic Refining Co., supra, at 23-24.

Decree affirmed.