Home ADA I. MARSHALL vs. ADA CRAM & others.

269 Mass. 124

November 5, 1929 - November 9, 1929

Middlesex County

Present: Rugg, C.J., Crosby, Pierce, Carroll, & Wait, JJ.

Probate Court, Jury issues.

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 Middlesex on January 21, 1929, for the proof of the will of Harriet E. Merriam, late of Acton.

The petition was opposed by nieces and nephews, who moved for the framing of issues to be tried by a jury. The motion was heard by Campbell, J., a stenographer having been appointed under the provisions of G. L. c. 215, ยง 18. The motion was denied. The respondents appealed.

L. Bryant, (J. N. Worcester with him), for the respondents.

C. F. Choate, for the petitioner.

RUGG, C.J. This is an appeal from the denial of a motion to frame issues for a jury trial in a will case. The issues insisted upon are whether the alleged testatrix was of sound mind, and whether the execution of the alleged will was procured by the fraud or undue influence of named persons. It is not necessary to narrate or summarize statements of expected evidence. As has been frequently stated, the principles of law governing the granting of jury issues in a case of this nature are settled and need not be repeated. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, 243 Mass. 149. Clark v. McNeil, 246 Mass. 250. Raposa v. Oliveira, 247 Mass. 188. McCormack v. Quilty, 266 Mass. 402, and cases there collected. Swift v. Charest, 268 Mass. 47. What constitutes unsoundness of mind, Woodbury v. Obear, 7 Gray 467, 472; Whitney v. Twombly, 136 Mass. 145; Becker v. Becker, 238 Mass. 362; Smith v. Brewster, 247 Mass. 395, and what constitutes undue influence, Hoffman v.

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Hoffman, 192 Mass. 416; Neill v. Brackett, 234 Mass. 367, 369, 370; Raposa v. Oliveira, 247 Mass. 188; McMann v. Murphy, 259 Mass. 397, are also thoroughly established, so far as statements of principles of law can make them clear. Notwithstanding the earnest argument made in behalf of the contestants, we are constrained to say that there is no error of law or abuse of discretion shown on this record.

Order denying motion affirmed.