Vetrano was convicted in a trial before a Superior Court judge under G. L. c. 278, Sections 33A-33G, on charges of possessing marihuana and amphetamines. Prior to trial the judge denied a motion to suppress drug capsules and plant fragments found in a bag in Vetrano's possession and taken from his person when he entered the apartment of Mrs. Starlene Walsh during a police search of the apartment pursuant to a warrant. The warrant and supporting affidavit, although discussed with the trial judge, are not before us as exhibits and do not appear in the transcript. They were shown to the judge "by way of background." The burden, of course, was on Vetrano to prove, if he could, that the search was not made pursuant to a valid warrant based on adequate information to the issuing magistrate contained in the supporting affidavit. See Commonwealth v. Fancy, 349 Mass. 196, 202-203; Commonwealth v. Owens, 350 Mass. 633, 635-636. No such burden was sustained.

Judgments affirmed.

This is an appeal by the assessors of Dartmouth under G. L. c. 58A, Section 13, from a decision of the Appellate Tax Board granting an abatement of real estate taxes for the year 1968 assessed on a "Barber-Greene semiportable asphalt plant." The board found that the "plant" is machinery used in manufacturing bituminous concrete, is portable, can be moved from place to place by removing a few nuts, and is not affixed to or erected on land within the meaning of G. L. c. 59, Section 3. There was no error. "The law is well settled that land and buildings erected thereon or affixed thereto are properly taxed as a unit and this rule is not affected by private agreements or by the degree of physical attachment to the land." Ellis v. Assessors of Acushnet, 358 Mass. 473, 475. But that rule does not apply to machinery used in manufacture, which, if it is not real estate, may be exempt from taxation as personal property under G. L. c. 59, Section 5, Sixteenth (3). See G. L. c. 59, Sections 45, 46; G. L. c. 63, Sections 38C, 42B; Hamilton Mfg. Co. v. Lowell, 185 Mass. 114, 117; Chelsea v. Richard T. Green Co. 319 Mass. 162, 166. The board did not pass on the taxation of the machinery as personal property. Nor do we.

Decision affirmed.

Anthony E. Cefalo, a building contractor, forty-two years old, was nominated as executor by his father, Joseph Cefalo (the testator), in the latter's will. Anthony was given letters testamentary by a Probate Court decree, over the opposition of the testator's widow, his second wife and stepmother of Anthony and his three sisters. The will left $500 to each grandchild, certain Needham real

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estate (which had been deeded to the widow on November 30, 1967, after the date of the will) to the widow, and the residue to the testator's children. The widow waived the provisions of the will for her benefit. See G. L. c. 191, Section 15 (as amended through St. 1964, c. 288, Section 1). The case is before this court on an agreed record (S.J.C. Rule 1:04, 351 Mass. 734 ), which includes a transcript of the testimony before the probate judge. Although the evidence shows that some hostility between Anthony and the widow arose as a consequence of the widow's decision to waive the will and to contest his appointment, the suitability of Anthony to be named as executor was a matter for the determination of the probate judge, who must appoint the testator's nominee unless he is "unsuitable." Grossman v. Grossman, 343 Mass. 565, 566, 568. See G. L. c. 192, Section 4; Davis, petitioner, 237 Mass. 47, 49-50. See also Quincy Trust Co. v. Taylor, 317 Mass. 195, 196-197; Cooney v. Montana, 347 Mass. 29, 38; Colbert v. Hennessey, 351 Mass. 131, 143. Nothing in the evidence suggests that the probate judge, who saw and heard the witnesses, was plainly wrong in determining that Anthony was "suitable."

Decree affirmed.