4 Mass. App. Ct. 771 | Mass. App. Ct. | 1976
The testimony of the witness Glidden concerning his telephone conversation with the testator which was offered by the proponent of the copy of the codicil (as to which see Gannon v. MacDonald, 361 Mass. 851 [1972]) was admissible in evidence in accordance with the principles stated in Phillips v. Chase, 201 Mass. 444, 448-449 (1909). See also Panell v. Rosa, 228 Mass. 594 (1917); Edelstein v. Old Colony Trust Co. 336 Mass. 659, 666 (1958); 8 Wigmore, Evidence § 2329, at 77 (Supp. 1975); McCormick, Evidence, § 94, at 198-199 (2d ed. 1972); Hughes, Evidence, § 166, at 174 (1961). The proponent was confronted with the presumption that the testator had destroyed the original of the codicil with intent to revoke it (see Miniter v. Irwin, 331 Mass. 8, 9 [1954]) as well as with express testimony to the same effect, and the proponent was entitled to have the judge consider the evidence to the contrary which was excluded. The decree entered on the petition of John B. Walsh is reversed, and that petition is to be tried anew.
So ordered.