Home FRANCES GARAFALO vs. IDA BOCCADORO, individually and as administratrix.

362 Mass. 886

November 10, 1972

The petitioner by a petition in equity filed in the Probate Court sought an accounting by the estate of her deceased brother for his acts as executor under their father's will. She alleged that she and her brother were to share equally in the residue of the father's estate, that she was ill and infirm and relied on her brother, that he received the proceeds of the estate and intermingled its funds with his own, and that she received none of the residue. The trial judge entered a decree allowing a plea in bar based on the allowance of the first and final account of the brother as executor, and a decree dismissing the petition. The petitioner appeals from both decrees. The decree allowing the plea in bar was technically correct. Wilbur v. Hallett, 305 Mass. 554, 558. We think, however, that the petitioner should be given leave to amend her petition to a petition to revoke the decree allowing the account in the father's estate and for other appropriate relief. G. L. c. 206, Section 24. See Fordyce v. Dillaway, 212 Mass. 404, 411; Jose v. Lyman, 316 Mass. 271, 280; Jackson v. United States Trust Co. 361 Mass. 333, 339-340, and cases cited. The decree allowing the plea in bar is affirmed. If within sixty days after rescript the petitioner shall seek such an amendment of the petition, the decree dismissing the petition shall be vacated, the amendment shall be allowed, and the case shall stand for further proceedings; if the amendment is not so sought, the decree dismissing the petition shall be affirmed.

So ordered.


362 Mass. 886

November 29, 1972

These are appeals under G. L. c. 278, Sections 33A-33G, from convictions on indictments charging the defendant with assault with a dangerous weapon, larceny of a motor vehicle and armed robbery. The defendant presents a single assignment of error which relates to the admission of certain evidence upon redirect examination of a police officer. On direct examination on behalf of the Commonwealth, the officer testified that, pursuant to a search warrant, he searched the defendant's hotel room and discovered a brown valise. On cross-examination, the officer testified that he did not know whether the defendant had any money in his possession at the time of his arrest. Upon redirect examination, over objection of defence counsel that the question was beyond the scope of the cross-examination, the officer was asked whether he had recovered any money during the course of his search of the hotel room. He testified that he had found $625.50 in the brown valise. The judge committed no error in allowing testimony on redirect examination as to the contents of the valise. When the defendant's counsel inquired on cross-examination about the presence of any

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funds on the defendant's person at the time of his arrest, the scope of the cross-examination clearly made appropriate the question whether there were any funds in the defendant's hotel room at the time it was searched. Even if the question asked on redirect examination had been beyond the scope of the cross-examination, it was within the discretion of the judge to permit matters not testified to on cross-examination to be dealt with on redirect examination. Commonwealth v. Galvin, 310 Mass. 733, 748. Commonwealth v. Binkiewicz, 342 Mass. 740, 758. Wigmore, Evidence (3d ed.) Section 1867.

Judgments affirmed.