348 Mass. 774

December 1, 1964

A master was justified by his subsidiary findings in concluding in effect that De Mauro, with the plaintiff's consent, reasonably improved a way without excess excavation, damage to the plaintiff, or material interference with the road level near the plaintiff's buildings. Upon the basis of the confirmed master's report a final decree dismissing the bill (seeking principally restoration of removed soil) was properly entered.

Decree affirmed with costs to the defendant.

Home SALLY A. TAYLOR vs. HENRY C. ASCHENBACH & others, executors.

348 Mass. 774

December 1, 1964

This is an appeal from a decree dismissing a petition to revoke the decree of the Probate Court, Hampden County, entered on November 16, 1962, allowing the will of Robert F. Ashbrook, late of West Springfield, who died on October 16, 1962. The petitioner, a daughter of the testator living in California, alleges in her petition filed on November 18, 1963, that she first learned of the allowance of the will on April 8, 1963. Substantial provision for her was made in the will, and she was listed as an heir at law in the petition for probate, citation upon which issued in the prescribed form (including advertising in the West Springfield Record). There was due compliance with the citation. The petitioner was bound by the decree. Bonnemort v. Gill, 167 Mass. 338 , 340. Fuller v. Sylvia, 243 Mass. 156 , 159. Donnell v. Goss, 269 Mass. 214 , 217. Ryan v. Cashman, 327 Mass. 677 , 679. At the hearing of the petition to revoke, the petitioner's counsel requested a continuance so that he could summon witnesses or take depositions in support of that petition. He stated that he could give no ground for disallowance of the will. The motion was denied. There was no error in any respect. The appeal borders on the frivolous.

Decree affirmed.


348 Mass. 774

December 2, 1964

This is an action of tort for personal injuries resulting from a fall on a public way "known as the stairway of the Abbe Avenue Bridge in Springfield." There was evidence of the following. The stairway was made of cement and the "northerly tip of the 14th step was missing . . . [and] the missing tip . . . was irregular, at its maximum about 10" in length and about 2 1/2" in width." Two photographs were introduced in evidence. "Aside from the introduction of the photographs there was no evidence as to the length of time the defect was

Page 775

there." The sole issue before us is whether there was sufficient evidence from which the jury would be warranted in finding that the defendant "knew or in the exercise of proper care and diligence ought to have known of the defect in time to have remedied it." Kelly v. Springfield, 328 Mass. 16 . We have examined the photographs and conclude that it would be conjectural to infer from them the length of time the defect had existed. Compare Kelly v. Springfield, supra, 17-18; Hanson v. Worcester, 346 Mass. 51 , 52-53. There was no error in the direction of a verdict for the defendant.

Exceptions overruled.