Home LEO GORDON vs. EDNA G. LEVY & others.

362 Mass. 866

June 14, 1972

In this appeal from a decree allowing the last will of Goldie Starr, the contestants assert that the proponent of the will failed to prove due execution thereof, that the will was procured through undue influence and fraud on the part of the chief beneficiaries and the attorney who drew the will, and that the decedent was mentally incompetent. The three witnesses to the will were members of the bar of the Commonwealth, and two of them testified that all three were present when the will was duly executed and witnessed. The third witness to the will, who was trial counsel for the proponent, was present throughout four days of trial but was not called as a witness by either party. The proof of due execution was sufficient. Hammill v. Weeks, 225 Mass. 245 . See Genovese v. Genovese, 338 Mass. 50 , 52. Compare Brackett v. Fuller, 279 Mass. 62 , 71. If, as the contestants assert, "the heir has a right to insist on the testimony of all the three witnesses" (see Chase v. Lincoln, 3 Mass. 236 , 237), they did not invoke that right. Compare O'Connell v. Dow, 182 Mass. 541 , 545-546; Nunn v. Ehlert, 218 Mass. 471 , 474; Finer v. Steuer, 255 Mass. 611 , 615-616; Goodwin v. Riordan, 333 Mass. 317 , 318; Costello v. Conlon, 344 Mass. 754 . The judge found that the decedent was of sound mind at the time of making the will, and we cannot say that finding is plainly wrong. He was not required to believe the testimony of the contestants' psychiatrist, who testified that his fee depended on the outcome of the case. There was no evidence of fraud, and very little to support a finding of undue influence. Costs and expenses of this appeal are to be awarded in the discretion of the Probate Court.

Decree affirmed.

Home PAUL A. WRIGHT vs. COMMONWEALTH.

362 Mass. 866

June 14, 1972

This petition for a writ of error was heard in the county court. The single justice affirmed the judgment and filed a memorandum. The case is before us on Wright's exception to the rulings and order of the single justice. After a jury waived trial before an experienced judge of the Superior Court on February 7, 1968, Wright was found guilty of assault with intent to rape and sentenced to a term of not more than fifteen years and not less than twelve years. No exceptions were saved at the original trial. Wright now claims that at the trial in the Superior Court he was denied the "effective assistance of counsel . . . on the ground that his counsel failed to object and except to [certain identification] testimony by the alleged victim . . . and after his trial . . . that his counsel . . . failed to prosecute a direct appeal . . . to the Supreme Judicial Court." Wright testified before the single justice and the transcript of the original trial was introduced in evidence. We discern no point in summarizing the testimony contained in the trial transcript. It is sufficent to state that we agree with the single justice who ruled that the "testimony warranted the finding of guilty by the judge who heard and saw the witnesses . . . [and that he perceived] nothing in the record . . .

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which indicates that defence counsel before, at, or after trial was not competent, diligent, and acting properly or that his trial tactics were not reasonable in the circumstances." The single justice concluded that "Wright was not denied effective assistance of counsel." There was no error.

Exceptions overruled.