290 Mass. 51

December 12, 1934 - February 27, 1935

Court Below: Probate Court, Suffolk County

Present: Rugg, C.J., Crosby, Field, & Lummus, JJ.

Probate Court, Jury issues.

The denial of a motion for jury issues by the respondent in a petition for proof of a will was proper where statements of expected evidence by counsel did not show that there were genuine issues of fact to be tried, upon which the respondent could reasonably hope for a favorable result.

PETITION, filed in the Probate Court for the county of Suffolk on April 3, 1934, for proof of the will of George H. Brophy, late of Boston.

Certain next of kin moved for the framing of jury issues, as described in the opinion. The motion was heard by Prest, J., and was denied. Such respondents appealed.

R. F. Driscoll, for the respondents.

T. H. Russell, for the petitioner, submitted a brief.

RUGG, C.J. This is an appeal from an order denying a motion to frame issues for trial by jury concerning an instrument offered for probate as the last will of a decedent. The proposed issues relate to due execution, soundness of mind and undue influence. The case was heard upon statements by counsel for respective parties as to evidence expected to be offered at the trial. As pointed out in the finding of material facts by the judge, certain statements thus made would not be admissible in evidence. Shailer v. Bumstead, 99 Mass. 112.

The governing principles of law 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. Swift v. Charest, 268 Mass. 47. Anderson v. Jackson, 286 Mass. 146. It would serve no useful purpose to review or summarize the statements offered in lieu of evidence.

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The record presents no genuine question of fact touching the proposed issues. It affords no basis for a reasonable hope for a result favorable to the contestants.

Order denying motion for issues affirmed.