2 Mass. App. Ct. 797

March 6, 1974

The proponent appeals from an order of a Probate Court allowing a motion to frame jury issues. The issues ordered to be framed are: (1) soundness of mind of the deceased at the time of the execution of the alleged will, and (2) whether the execution of the will was procured by undue influence. The motion was heard upon statements by counsel of expected evidence and pleadings in related litigation. We are to decide the case giving due weight to the decision of the probate judge. Simoneau v. O'Brien, 311 Mass. 68, 74 (1942). To be decided is whether there is "a genuine and doubtful question of fact to be determined and evidence of such substantial nature as to afford reasonable expectation of a result favorable to the . . . [contestant]." Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51, 56 (1955). Applying these settled principles to the prospective evidence, we conclude that the order of the judge was warranted.

Order allowing motion for jury issues affirmed.

Home ROBERT B. THOMSON vs. JET SPRAY CORP. & others (and a companion case [Note 1]).

2 Mass. App. Ct. 797

March 8, 1974

In each of these cases the defendants' demurrer to the plaintiff's substitute declaration was sustained. In each case, the plaintiff filed a timely motion for leave to amend that declaration (see Rule 23 of the Superior Court [1954]), attaching thereto a copy of the proposed amended declaration. In each case, the motion was denied after hearing. The cases are here solely on the plaintiffs' exceptions to those denials. The motions were "addressed

Page 798

to the discretion of the trial judge, and [their] denial, in the absence of findings, rulings, or requests for rulings . . . presents no question of law." Keliher v. Champion, 358 Mass. 821 (1971), and cases cited. Compare Loranger Constr. Corp. v. E. F. Hauserman Co. 1 Mass. App. Ct. 801 (1973). In each case there was no abuse of discretion.

Exceptions overruled.


[Note 1] Crathco, Inc. vs. Jet Spray Corp. & others.