WALTER A. LAMBERT, administrator with the will annexed, vs. BERTHA R. M. CHENEY.

CARROLL, J. This is an appeal from a decree of the Probate Court for Suffolk County allowing the will of Mamie E. Mawson, late of Boston. In the Supreme Judicial Court, on motion of the appellant, issues were framed and the case was sent to the Superior Court, where it was brought before a jury [Note p378] who, on October 14, 1914, found that the will was properly executed, that the testatrix was of sound mind, and that no fraud or undue influence was practiced upon her.

Exceptions were not filed within the time required by law, R. L. c. 173, § 106, but the time for filing was extended to and including November 23, 1914, on which day the exceptions of the appellant were filed; but no notice of the filing was given to the appellee until the next day, November 24, 1914. De Bang v. Scripture, 168 Mass. 91. On November 25, 1914, the appellant filed a motion requesting an extension of time for the giving of notice of the filing of her exceptions and requesting the court, in the event of the dismissal of her exceptions, to report the case to the full court; and on the same day the appellee filed

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a motion in the Superior Court, asking that the exceptions be dismissed because of the failure to give the notice within the proper time. Hack v. Nason, 190 Mass. 346.

On December 8, 1914, after a hearing, the judge of the Superior Court denied the motion of the appellant for an extension of time, allowed the motion of the appellee to dismiss the exceptions and refused to report the case to the full court. The appellant's exceptions were accordingly dismissed. No appeal from or exception to this decision was taken in the Superior Court. On December 29, 1914, the clerk of that court returned the papers to this court, with his certificate of the proceedings in the Superior Court. At the hearing in the Supreme Judicial Court [Note p379] upon a motion to enter a final decree, the appellant objected, and for the first time presented her motion for a rehearing, asking that the findings upon the second and third issues be set aside and a new trial be granted on those issues, either in this court or in the Superior Court, because the judge excluded evidence offered by her, refused instructions requested by her, and gave instructions inconsistent with those she had requested. This motion was denied, and interlocutory and final decrees were ordered to be entered.

The motion of the appellant before a justice of the Supreme Judicial Court, at the hearing to enter the proper decrees in the case, was in effect a motion for a new trial. Such a motion must be made in the court where the case is tried. R. L. c. 173, § 112. Coffing v. Dodge, 169 Mass. 459. Manzigian v. Boyajian, 183 Mass. 125. Motions for new trials in probate appeals are governed by the same rules as in suits at common law. Perry v. Shedd, 159 Mass. 200.

But the appellant maintains that the verdict of a jury in a probate appeal is merely to inform the conscience of the court, and that the judge may adopt or disregard it; that the verdict in such a case being advisory, it is not conclusive, as in an action at law, and the court ordering the decree may enter such a decree as it thinks proper, notwithstanding the verdict of the jury. And this is the practice in a number of jurisdictions. See Fletcher, Eq. Pl. & Pr. 631, et seq.; but in this Commonwealth the practice

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has been directly to the contrary. The verdict of a jury at common law or in a probate appeal is conclusive and is looked upon as establishing all the facts, unless, within the discretion of the trial judge, the verdict is set aside. Crocker v. Crocker, 188 Mass. 16. And on appeal to this court, we cannot set aside the verdict of a jury on issues properly submitted to them and heard in another tribunal. Crocker v. Crocker, supra. See also Newburyport Institution for Savings v. Coffin, 189 Mass. 74. When the case came before a single justice of this court, he, as matter of law, properly refused the motion of the appellant and ordered the decrees to be entered.

Decree affirmed.

G. P. Bryant, for the appellant.

F. Burke, for the appellee.