Home JOSEPH W. MACALLISTER & another vs. ROBERT C. HOSLEY (and a companion case).

352 Mass. 766

March 3, 1967

These are two actions of contract. The declaration in each case is the same and consists of two counts, one on an account annexed for goods sold and delivered, the other in quantum meruit. The answer of each defendant included the defence of res adjudicata. The trial judge directed verdicts for the defendant in each case on both counts. The cases are before us on the plaintiffs' bills of exceptions. The defendants introduced in evidence the record in a case which was tried in the Fourth District Court of Plymouth County. In that case the plaintiffs in the cases at bar had brought an action against the defendants in the cases before us as copartners, for the same cause of action as in the instant cases. There was a finding for the defendants in the District Court. The plaintiffs contend that the present cases are not res adjudicata because they are "brought against the defendants as individuals and not as copartners." We do not agree. There is nothing in the record to indicate that the case in the District Court was not tried on its merits. The judge in that court could have made a finding against the defendants individually or jointly. Taft v. Church, 162 Mass. 527 , 533. Phelps v. Shawprint, Inc. 328 Mass. 352 , 359. See G. L. c. 231, Section 4A; G. L. c. 235, Section 6.

Exceptions overruled.

Home ROSE MCNAMARA, special administratrix, vs. JOHN J. CARUSO & another.

352 Mass. 766

March 30, 1967

Based on oral testimony which is reported the probate judge made a comprehensive report of material facts and entered a decree that, by virtue of a deed executed September 4, 1964, by the decedent to her son and his wife, title to real estate at 200 Reservation Road, Hyde Park, Massachusetts, was in the grantees. The plaintiff, as special administratrix of the estate of the decedent, appeals from the decree. She sought to set aside the conveyance on the grounds of fraud and undue influence by the grantees and of unsoundness of mind of the decedent. The judge found that although the son, to the know]edge of the decedent, "had taken gross advantage of her," he "continued to be the apple of her eye," and that "the conveyance of her home to him and his wife was pursuant to her independent wish and was made with her full understanding at a time when she was mentally competent." We cannot say that the judge was plainly wrong. Hiller v. Hiller, 305 Mass. 163 .

Decree affirmed.

Home HENRY F. SMITH [Note 1] vs. DELLA A. SMITH & others.

352 Mass. 766

March 30, 1967

This appeal from a final decree of the Probate Court of Essex County disallowing the petition for probate of the will of Joseph F. Smith challenges the judge's findings that the testator was not of sound mind on May 16, 1962, when the proposed will was executed, and that the proposed will was procured by undue influence. Either ground would be sufficient to disallow the will. We dispose of the appeal on the first ground. The evidence, consisting almost exclusively of oral testimony, is reported. The judge's report of material facts consisting of twelve

Page 767

printed pages shows that the testator, who had been in good health, suffered a stroke in March, 1960, at the age of seventy-nine, and thereafter deteriorated rapidly, both physically and mentally, until his death on December 22, 1963. During this period he was almost constantly under the care of doctors. He had numerous and complicated serious physical ailments, had lost control of his bodily functions and was unable to care for himself. The testator entered a hospital in April, 1962, for thirteen days. He was then senile and incoherent. On his return home he showed great confusion and did not seem to recognize his children. The judge's finding that the testator was not of sound mind at the time the proposed will was executed cannot be said to be plainly wrong. Needham Trust Co. v. Cookson, 251 Mass. 160 . Hiller v. Hiller, 305 Mass. 163 .

Decree affirmed.


FOOTNOTES

[Note 1] Joseph Warren Smith joins in the appeal.