310 Mass. 828

November 7, 1941

Exceptions overruled. By this action of tort brought in the Superior Court the plaintiff sought to recover compensation for personal injuries sustained by her as a result of falling on ice on a public sidewalk in front of the defendants' premises. The defendants excepted to the denial of their motion for a directed verdict. The matter in controversy is whether the ice upon which the plaintiff fell was an unnatural accumulation of ice upon the sidewalk resulting from a flow of water from a water pipe at one end of a porch in front of the defendants' building about fourteen feet back from the sidewalk. We cannot say, as contended by the defendants, that the somewhat vague testimony of the plaintiff, if believed, considered with the evidence as to the nature of the premises, would not warrant a finding that the ice upon which the plaintiff fell was caused by the freezing of water flowing from this water pipe across the defendants' lawn -- graded by them so as to slope toward the sidewalk -- into a small trench at the side of the sidewalk, and thence upon the sidewalk. Nor can we say, also as contended by the defendants, that as matter of law the plaintiff's testimony was so incredible in the light of common knowledge and experience that the jury could not accept it as true. See Powers v. Wyman & Gordon Co. 199 Mass. 591, 593-594; Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384. In accordance with settled principles, permissible findings would support a verdict for the plaintiff. Cochran v. Barton, 233 Mass. 147, 149-150, and cases cited. The motion was denied rightly.


310 Mass. 828

November 12, 1941

Decree affirmed, with costs and expenses of the appeal, determined in the Probate Court, to the appellee as against the appellants. These are appeals by three contestants from a decree of the Probate Court allowing a certain instrument as the last will and testament of J. Henry Marcy, late of Stoneham, deceased. The only contention argued by the contestants is that the instrument was not duly executed. Counsel for two of the contestants stated at the hearing in the Probate Court that he did not "question the execution of the will." Counsel for the other contestant stated that he did. All three contestants, however, have appealed. The appeals are without merit. The evidence supports the finding in the decree that the instrument was "legally executed." There was ample evidence that the deceased signed the instrument intending it to be his will. There was no evidence to the contrary, and no affirmative evidence that the deceased did not know the contents of the instrument. In these circumstances further evidence was not required to sustain the burden of proof resting on the proponent of knowledge

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of the deceased of such contents. Worthington v. Klemm, 144 Mass. 167. Dunham v. Holmes, 225 Mass. 68, 72. Richardson v. Richards, 226 Mass. 240, 245. Holbrook v. Seagrave, 228 Mass. 26, 30. Costs and expenses of this appeal, to be determined in the Probate Court, are awarded to the appellee as against the appellants. G. L. (Ter. Ed.) c. 215, Section 45.