Hanford v. Mercier

38 N.E.2d 564, 310 Mass. 828, 1941 Mass. LEXIS 899

• Court: Massachusetts Supreme Judicial Court
• Decided: November 12, 1941
• Status: Published

Opinion

Decree affirmed, with costs and expenses of the appeal, determined in the Probate Court, to the appellee as against the appellants. These are appeals by three contestants from a decree of the Probate Court allowing a certain instrument as the last will and testament of J. Henry Marcy, late of Stoneham, deceased. The only contention argued by the contestants is that the instrument was not duly executed. Counsel for two of the contestants stated at the hearing in the Probate Court that he did not “question the execution of the will.” Counsel for the other contestant stated that he did. All three contestants, however, have appealed. The appeals are without merit. The evidence supports the finding in the decree that the instrument was “legally executed.” There was ample evidence that the deceased signed the instrument intending it to be his will. There was no evidence to the contrary, and no affirmative evidence that the deceased did not know the contents of the instrument. In these circumstances further evidence was not required to sustain the burden of proof resting on the proponent of knowledge of the deceased of such contents. Worthington v. Klemm, 144 Mass. 167. Dunham v. Holmes, 225 Mass. 68, 72. Richardson v. Richards, 226 Mass. 240, 245. Holbrook v. Seagrave, 228 Mass. 26, 30. Costs and expenses of this appeal, to be determined in the Probate Court, are awarded to the appellee as against the appellants. G. L. (Ter. Ed.) c. 215, § 45.

M. J. Cohen & A. L. Bourgeois, for the respondents, submitted a brief. L. Hill, (F. P. Hanford with him,) for the petitioner.