GARDNER CUSHMAN & another [Note 1] vs. NANCY BIRD NICHOLS.

Nancy Bird Nichols, an objector to the probate of the will of her stepmother, Margaret Follin Bird, appeals from a decision of a probate judge

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declining to frame issues for a jury (see G. L. c. 215, Section 16) on whether the testatrix had the mental capacity to execute the will, and whether the execution of the will was brought about by fraud or undue influence on the part of her daughter and son-in-law, Adelaide and Walker B. Comegys. [Note 2] Because of the objector's apparent failure to comply with the rules of appellate procedure regarding the content of a record on appeal, the record properly before us may, in strictness, be so meager as to invite affirmance without more. We choose to overlook such defects and to consider the merits as displayed in the papers tendered on both sides of the questions at bar. These proofs -- depositions and other materials -- are taken in part from the record made upon a motion for summary judgment by Adelaide and Walker Comegys to establish their right.

The motion for summary judgment was denied (without opinion) by the probate judge, and the objector makes some contention that that decision is inconsistent with the same judge's denial (also without opinion) of the objector's motion to frame issues. But, first, the summary judgment procedure is not available in will contests like the present, [Note 3] so the judge's negative decision may have gone on that technical ground. Second, the denial of a motion for summary judgment does not mean that the prevailing party on that motion has a robust chance of final success in the action; it means merely that he has a position that should not be dismissed out of hand. As will be seen, the former rather than the latter standard must be met by an objector before a judge is warranted in framing jury issues.

It will serve no public purpose to rehearse in any detail the evidence and the inferences sought to be drawn from it. In brief: Mrs. Bird in her next-to-last will (1981) favored the objector, the daughter of her deceased second husband, as compared with her own daughter of her first marriage. But in her last will (1982), a year before her death at age seventy-seven, Mrs. Bird reversed course and favored her daughter. Thus, whereas the residue of the estate would have passed under the previous will five-eighths to Nancy and her four children in equal parts, and two-eighths to Adelaide and one eighth to Adelaide's daughter Elizabeth, [Note 4] now two-thirds of the residue would go to Adelaide and one-third to Elizabeth. The measure of the objector's disappointment is her institution of the present suit.

It seems to us that in demanding that issues be framed, the objector underrates the standard she has to meet, while overrating the proofs she

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has on hand. [Note 5] A judge is not to frame issues merely on the footing that the case can be as well decided by a jury as by a judge. Cf. Fuller v. Sylvia, 240 Mass. 49, 53 (1921); Ware v. Morton, 288 Mass. 107, 109 (1934). A judge acts affirmatively only when the objector shows "a genuine and doubtful question of fact supported by evidence of such substantial nature as to afford ground for reasonable expectation of a result favorable to the party seeking the framing of the issue." Cowee v. Morton, 336 Mass. 300, 303 (1957). See also Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51, 55-56 (1955); Plakas v. Plakas, 11 Mass. App. Ct. 922 (1981); 1 Newhall, Settlement of Estates Section 42 (4th ed. 1958 & Supp. 1985). On the issue of testamentary capacity, the proponents of a will have the ultimate burden of proof, see Claffey v. Fenelon, 263 Mass. 427, 430 (1928), but the question is not put to a jury where prima facie all that is suggested is such a deterioration of mental capacity or loss of alertness as often comes with advanced age, leaving intelligence and awareness adequate to support the exercise of judgment. [Note 6] That a testator disposes of property in a manner that some may think unwise, is remote from proof of the kind of mental breakdown that ought to invalidate a will.

When it comes to fraud or undue influence, the burden is on the objector, see Hogan v. Whittemore, 278 Mass. 573, 578 (1932), and here it is not enough to point to evidence of some vague opportunity for suasion very short of connivance to bring about the psychological collapse of a testator to the stage of the destruction of an independent will. Wee Neill v. Brackett, 234 Mass. 367, 369 (1920). Cf. Bruno v. Bruno, 10 Mass. App. Ct. 918 (1980), S.C., 384 Mass. 31, 33-35 (1981).

Even apart from the weight that attaches to the decision of the probate judge, see Fay v. Vanderford, 154 Mass. 498, 499 (1891); Seiferth v. Hay, 352 Mass. 768, 769 (1967), we are confident of our judgment that on neither issue has the objector at this preliminary stage established a reasonable

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prospect of success. The objector is entitled to a nonjury trial of the issues, and, of course, may succeed in the end.

Order affirmed.