Opinion
November 2, 1966.
Ronald W. Keefe for Barbara E. Stewart, administratrix.
Walter J. Hurley for Nathan A. Wasserman.
The judge was not plainly wrong in finding on conflicting evidence which is reported that the decedent was at all times mentally competent when he disposed of the property which is the subject of the litigation. The final decree determined in detail that the ownership of the bulk of the property was in Nathan, brother of the decedent, and that as to the remainder, there should be an accounting. The decree is consistent with the extensive findings of the judge. The judge correctly ruled on the evidence. On the material issue of the relationship over the years between Leo Wasserman and his father, the decedent, Leo testified on direct examination that, after service in the armed forces commencing in 1942, he had thereafter, from 1945 to 1949, "bummed around the country for a couple of years." On cross-examination, subject to exception, it was elicited from Leo that during the period 1944 to 1949 he had been confined for a total of more than two and one-half years in four penal institutions. The evidence was not inadmissible as violative of G.L.c. 233, § 21, which was not applicable. It was admissible as being contradictory to or inconsistent with the fair import of his direct testimony on the relevant fact of his activities and whereabouts during the period under inquiry. See Higlister v. French, 180 Mass. 299, 301; Commonwealth v. West, 312 Mass. 438, 440-441, and cases cited. Costs and expenses are to be in the discretion of the Probate Court.
Decree affirmed.