4 Mass. App. Ct. 826

June 29, 1976

It is clear from the evidence (including the 1970-1972 master plan) and from the judge's findings, none of which can be pronounced clearly erroneous (see Marlow v. New Bedford, 369 Mass. 501, 508 [1976]), that the reasonableness of the 1974 rezoning of the locus from residential to neighborhood business uses was fairly debatable and that the plaintiffs have failed to show beyond a reasonable doubt that the rezoning conflicted with any of the provisions of G. L. c. 40A, Sections 2 and 3, as in effect prior to St. 1975, c. 808, Section 3. See Crall v. Leominster, 362 Mass. 95, 101-103 (1972), and cases cited. The present case is governed in principle by such cases as Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 224-230 (1964). Barrett v. Building Inspector of Peabody, 354 Mass. 38, 40-42 (1968), and Durand v. Superintendent of Pub. Bldgs. of Fall River, 354 Mass. 74, 75, 77 (1968), rather than by such cases as Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128, 129-130, 133-134 (1941), and Beal v. Building Commr. of Springfield, 353 Mass. 640, 641-644 (1968). The judgment is to be modified by striking out the concluding paragraph thereof (see Cameron v. Gunstock Acres, Inc. 370 Mass. 378, 382 [1976]) and, as so modified, is affirmed.

So ordered.


4 Mass. App. Ct. 826

June 29, 1976

The only question raised by the appeal was answered in the affirmative in Board of Appeals of Hanover v. Housing Appeals Comm. 363 Mass. 339, 354-355 (1973).

Judgment affirmed with double costs.


4 Mass. App. Ct. 826

July 9, 1976

1. The will was properly allowed on proof of the signatures of the testator (the contestant acknowledged that the signature on a copy of the will "looked like" her father's) and of the attesting witnesses. Goodwin v. Riordan, 333 Mass. 317, 318 (1955). The signature of the first witness was proved by the testimony of one who was acquainted with his signature (e.g., Pataskas v. Judeikis, 327 Mass. 258, 260 [1951]) and by the opinion (not objected to) of a handwriting expert, who testified that she had compared the witness' signature on the will to several "original" samples of his signature. Although grounds for objection to the admission of her opinion became apparent during cross-examination, the contestant's failure to move to strike the opinion left it as evidence in the case. Leach & Liacos, Massachusetts Evidence, 69-70 (4th ed. 1967). Proof of the signature was sufficient. Nickerson v. Buck, 12 Cush. 332, 341-342 (1853). The second witness, by deposition (see Rule 12 of the Probate Courts [1959]), properly identified her own signature. It was not necessary, as the contestant contends, for her to

Page 827

identify the testator's signature. Compare Dewey v. Dewey, 1 Met. 349, 353 (1840); Hogan v. Grosvenor, 10 Met. 54, 55-57 (1845); Nickerson v. Buck, supra; Newhall, Settlement of Estates, Section 38 (4th ed. 1958). We have been directed to no authority, and find none, for the contestant's contention that the depositions of the second and third witnesses should have been excluded because they identified their signatures on certified copies (apparently photographic) of the will, rather than on the original. We note that counsel for the contestant, who was present at the taking of the third witness' deposition, raised no such point then or when part of the deposition was read in evidence at the trial. 2. The contestant is not entitled to an intestate share under G. L. c. 191, Section 20, since the testator mentioned her in the will and intentionally omitted making provision for her (other than through survivorship of her mother). See Terry v. Foster, 1 Mass. 146, 150-151 (1804); Church v. Crocker, 3 Mass. 17, 21-22 (1807); Wilder v. Goss, 14 Mass. 356, 358 (1817); Prentiss v. Prentiss, 11 Allen 47, 49 (1865); Hurley v. O'Sullivan, 137 Mass. 86, 88 (1884); Jones v. Jones, 297 Mass. 198, 208 (1937); Newhall, Settlement of Estates, Section 352 (4th ed. 1958). No patent mistake of fact by the testator has been shown on this record. See Henderson, Mistake and Fraud in Wills, 47 B.U.L. Rev. 303 (1967); Warren, Fraud, Undue Influence and Mistake in Wills, 41 Harv. L. Rev. 309, 329-339 (1928).

Decree affirmed.