Home ERMINIA NOCERA vs. NICHOLAS DEFEO & another.

340 Mass. 783

December 31, 1959

Decree affirmed with costs of appeal. The plaintiff is the owner of a parcel of real estate on Woodlawn Street, Everett, which adjoins a lot owned by the defendants. There is a two family house on each lot. The plaintiff acquired her property in 1929 and has lived in it with her family continuously since 1932. The distance between the houses is twelve feet eight inches and the boundary line is exactly in the center. In June, 1956, the defendants erected a fence along the boundary line and the plaintiff, claiming an easement by prescription over the defendants' land, brought this bill to prevent interference with the asserted easement. The judge found that for more than twenty years the plaintiff and members of her family and tenants have used the strip between the two houses as a driveway to drive automobiles in and out of garages in the rear of the plaintiff's property; and that this use was "uninterrupted, open, notorious and adverse." A decree was entered adjudging that the plaintiff had an easement by prescription over a strip six feet four inches wide on the defendants' property and the defendants were ordered to remove so much of the fence as would give the plaintiff and her tenants unobstructed ingress and egress to and from the garages in the rear. The defendants appealed. The case comes here with a report of the evidence. There was no error. The findings of the judge support the decree and these findings in turn were supported by the evidence.

Home RICHARD M. NICHOLS & another vs. MARTHA R. SULLIVAN & others.

340 Mass. 783

December 31, 1959

Order denying jury issues affirmed. The expected testimony of psychiatrists who had not seen the decedent was at best subject to the infirmity of being based on only a portion of the evidence. Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51 , 57. The judge could rightly conclude that the proposed testimony for the contestants, including that of actions tending to show weakening of body and mind, was of substantially

Page 784

less weight than the statements of expected testimony of attending physicians and the decedent's attorneys which would support a finding of testamentary capacity at the times when the will and two codicils were executed. See O'Brien v. Collins, 315 Mass. 429 , 436. We discern no error in the application of the well known principles. See Clark v. McNeil, 246 Mass. 250 , 254-255; Taylor v. Callahan, 265 Mass. 582 .