Home MORRIS PATTEN, petitioner.

5 Mass. App. Ct. 897

December 2, 1977

We need not pass upon the petitioner's contention that the respondent has no right of appeal from a judgment of the Superior Court discharging the petitioner from custody, pursuant to G. L. c. 248, Section 23 (see Note, 41 Harv. L. Rev. 902, 905 [1928]), in view of our determination that there was no error in that judgment. For the reasons given in Wood v. Commissioner of Correction, 363 Mass. 79 (1973), in construing the good conduct forfeiture provisions of G. L. c. 127, Section 83B, which substantially track the critical provisions of Section 49 of that chapter, which are the subject matter of this appeal, we hold that the judge was right in his ruling that only good conduct deductions earned on the sentence being served at the time of the petitioner's escape from a work release program were to be forfeited and not those which might be earned thereafter on the same sentence following the petitioner's return. We are not persuaded by the respondent's argument that additional language contained in Section 49 requires a different result.

Judgment affirmed.

Home EDISON M. LOVE & another vs. ALBERT E. LOVE, JR.

5 Mass. App. Ct. 897

December 6, 1977

This is an appeal by the contestant of an alleged will of Eldon M. Love from the denial of his motion to frame jury issues. Having considered the entire record of the case, which includes the testimony of witnesses (rather than the customary statements of expected proof) and a record of the hospitalization of the deceased which began on the day the alleged will was signed, having given due weight to the decision

Page 898

of the trial judge (Laws v. Aschenbeck, 326 Mass. 7 , 11 [1950]), and having applied the frequently stated principles governing such cases (Neill v. Brackett, 234 Mass. 367 , 369-370 [1920]; Morin v. Morin, 328 Mass. 33 , 34 [1951]; Stewart v. Forrest, 356 Mass. 728 [1969]; Markus v. Gross, 1 Mass. App. Ct. 823 [1973]), we are of the opinion that there was no error.

Order affirmed.