ERMINIA NOCERA vs. NICHOLAS DEFEO & another.

RICHARD M. NICHOLS & another vs. MARTHA R. SULLIVAN & others.

340 Mass. 783

December 31, 1959

Order denying jury issues affirmed. The expected testimony of psychiatrists who had not seen the decedent was at best subject to the infirmity of being based on only a portion of the evidence. Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51 , 57. The judge could rightly conclude that the proposed testimony for the contestants, including that of actions tending to show weakening of body and mind, was of substantially

Page 784

less weight than the statements of expected testimony of attending physicians and the decedent's attorneys which would support a finding of testamentary capacity at the times when the will and two codicils were executed. See O'Brien v. Collins, 315 Mass. 429 , 436. We discern no error in the application of the well known principles. See Clark v. McNeil, 246 Mass. 250 , 254-255; Taylor v. Callahan, 265 Mass. 582 .