Cefalo v. Cefalo

359 Mass. 756 | Mass. | 1971

Anthony E. Cefalo, a building contractor, forty-two years old, was nominated as executor by his father, Joseph Cefalo (the testator), in the latter’s will. Anthony was given letters testamentary by a Probate Court decree, over the opposition of the testator’s widow, his second wife and stepmother of Anthony and his three sisters. The will left 8500 to each grandchild, certain Needham real estate (which had been deeded to the widow on November 30, 1967, after the date of the will) to the widow, and the residue to the testator’s children. The widow waived the provisions of the will for her benefit. See G. L. c. 191, § 15 (as amended through St. 1964, c. 288, § 1). The case is before this court on an agreed record (S.J.C. Rule 1:04, 351 Mass. 734), which includes a transcript of the testimony before the probate judge. Although the evidence shows that some hostilitj'- between Anthony and the widow arose as a consequence of the widow’s decision to waive the will and to contest his appointment, the suitability of Anthony to be named as executor was a matter for the determination of the probate judge, who must appoint the testator’s nominee unless he is “unsuitable.” Grossman v. Grossman, 343 Mass. 565, 566, 568. See G. L. c. 192, § 4; Davis, petitioner, 237 Mass. 47, 49-50. See also Quincy Trust Co. v. Taylor, 317 Mass. 195, 196-197; Cooney v. Montana, 347 Mass. 29, 38; Colbert v. Hennessey, 351 Mass. 131, 143. Nothing in the evidence suggests that the probate judge, who saw and heard the witnesses, was plainly wrong in determining that Anthony was “suitable.”

Ralph C. Copeland & Thomas E. Brew, Jr., for Antoinette A. Cefalo. Herbert D. Lewis for Anthony E. Cefalo.

Decree affirmed.