HERMAN W. FRENCH vs. MARIA DESMOND & another.
Application of the principles of law governing the determination of a motion, by next of kin contesting the proof of a will, for the framing of issues for trial by jury, which resulted in the affirmation of a decree of a probate court denying such a motion.
PETITION, filed in the Probate Court for the county of Norfolk on June 2, 1927, for the proof of the will of Mary J. Shayes, late of Randolph.
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Maria Desmond and Jennie V. Whitty, cousins, appeared to oppose the petition and moved that the following issues be framed for trial by jury:
"1. Was the instrument purporting to be the last will of said Mary J. Shayes dated April 26, 1927, executed according to law?
"2. Was the said Mary J. Shayes at the time of the execution of the said alleged will of sound mind?
"3. Was the execution of said alleged will of said Mary J. Shayes, procured by the fraud or undue influence of Elizabeth M. Flynn and Agnes Brennan or any of them exercised upon the said Mary J. Shayes?"
The motion was heard by Dolan, J., a stenographer having been appomted under G. L. c. 215, § 18, to take the evidence. The motion was denied. The respondents appealed.
The case was submitted on briefs.
W. J. Good, for the respondents.
Asa P. French, for the petitioner.
BY THE COURT. This is an appeal from an order denying a motion for the framing of issues to a jury in a will case. It is not necessary to make a detailed statement of the proof expected to be produced at a trial. Although the case is close to the line, it appears to be governed in every particular by the recent decision in McCormack v. Quilty, 266 Mass. 402, and cases there cited. Fuller v. Sylvia, 240 Mass. 49. Johnson v. Talbot, 255 Mass. 155.
Order denying issues affirmed.