Order affirmed. This is an appeal from an order of the Probate Court in the matter of the alleged will of Edna A. Fletcher, late of Stoneham -- made upon the motion of the sole heir at law and next of kin of the deceased -- framing issues for submission to a jury as to the testamentary capacity of the deceased and as to fraud or undue influence of one Charles H. Bateman, or some person or persons acting in his behalf, or any of them. Upon consideration of the statements of expected evidence -- which need not be recited -- in the light of the established principles of law governing the framing of such issues and review on appeal after action of the Probate Court on motions for the framing of such issues -- which have been frequently stated and need not be restated -- including recognition of the element of discretion vested in the probate judge, we conclude that there was no error in the framing of the issues. See Cook v. Mosher, 243 Mass. 149, 152-153; Hannon v. Gorman, 296 Mass. 437.

Exceptions overruled. The defendant, who has been found guilty of the rape of a girl over sixteen years of age, brings this case before us on his exceptions to the denial of his motion for a directed verdict of not guilty and to certain instructions given to the jury by the judge. The evidence would have warranted the jury in finding, as they impliedly did, that the defendant had sexual intercourse with the girl involved while she was so stupefied by intoxicating liquor served to her by the defendant that she was incapable of consenting to the act. The action of the judge in denying the motion for a directed verdict of not guilty was therefore right. Commonwealth v. Burke, 105 Mass. 376, and cases cited. An examination of the instructions complained of discloses no prejudicial error of law.

Order affirmed. This is an appeal from an order of the Probate Court in the matter of the alleged will of Edward F. Richardson, late of Boston -- made upon the motion of certain next of kin of the deceased -- framing an issue for submission to a jury as to the testamentary capacity of the deceased. Upon consideration of the statements of expected evidence -- which need not be recited -- in the light of the established principles of law governing the framing of such issues and review on appeal after action of the Probate Court on motions for the framing of such issues -- which have been frequently stated and need not be restated -- including recognition of the element of discretion vested in the probate judge, we conclude that there was no error in the framing of the issue. See Cook v. Mosher, 243 Mass. 149, 152-153; Hannon v. Gorman, 296 Mass. 437.