Home JOHN B. WALSH vs. RONALD W. KEEFE.

4 Mass. App. Ct. 771

January 28, 1976

The testimony of the witness Glidden concerning his telephone conversation with the testator which was offered by the proponent of the copy of the codicil (as to which see Gannon v. MacDonald, 361 Mass. 851 [1972]) was admissible in evidence in accordance with the principles stated in Phillips v. Chase, 201 Mass. 444 , 448-449 (1909). See also Panell v. Rosa, 228 Mass. 594 (1917); Edelstein v. Old Colony Trust Co. 336 Mass. 659 , 666 (1958); 8 Wigmore, Evidence Section 2329, at 77 (Supp. 1975); McCormick, Evidence, Section 94, at 198-199 (2d ed. 1972); Hughes, Evidence, Section 166, at 174 (1961). The proponent was confronted with the presumption that the testator had destroyed the original of the codicil with intent to revoke it (see Miniter v. Irwin, 331 Mass. 8 , 9 [1954]) as well as with express testimony to the same effect, and the proponent was entitled to have the judge consider the evidence to the contrary which was excluded. The decree entered on the petition of John B. Walsh is reversed, and that petition is to be tried anew.

So ordered.

Home WILLIAM MCCLINTOCH & another vs. PARKER ALLEN.

4 Mass. App. Ct. 771

January 29, 1976

The plaintiffs have appealed from an order for judgment entered after allowance of the defendant's motion to dismiss for failure to prosecute and after denial of the plaintiffs' motion for rehearing. Rule 41 (b) (2) of the Massachusetts Rules of Civil Procedure, 365 Mass. 804 (1974), provides: "On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute . . ." (emphasis supplied). No abuse of that discretion has been demonstrated. The order for judgment is affirmed, and judgment is to be entered dismissing the action.

So ordered.