Home PHILOMENA FIERIMONTE vs. PASQUALE BONTEMPO & others.

322 Mass. 742

November 26, 1947

Decree affirmed. This is an appeal from a decree allowing a certain instrument as the will of Antonio Bontempo. The issues apparently are soundness of mind and undue influence by the sole beneficiary. There was ample evidence supporting the decree.

Home WILLIAM M. HURLEY vs. HELENA BEAN.

322 Mass. 742

November 28, 1947

Order framing jury issues reversed as to the issue of whether the instrument offered for probate was executed according to law, and affirmed as to the issues of testamentary capacity and fraud or undue influence. This is an appeal from an order of the Probate Court in the matter of the allowance of the alleged will of Dennis Hurley, late of Cambridge -- made upon the motion of the sole heir at law and next of kin of the deceased -- framing jury issues as to the testamentary capacity of the deceased, as to fraud or undue influence of John J. Hurley and William M. Hurley or either of them, and as to the proper execution of the instrument offered for probate. Upon consideration of the statements of expected evidence, which need not be recited, we are unable to say that the judge could not have concluded that there were "a genuine and doubtful question of fact" and "a reasonable hope for a result favorable to the party requesting the framing of issues" on the issues of testamentary capacity and fraud or undue influence. Fuller v. Sylvia, 240 Mass. 49 , 53. There is nothing in the record, however, indicating a doubtful question of fact on the issue of whether the instrument offered for probate was executed according to law and this issue ought not to have been framed. Mayhew v. Chase, 265 Mass. 314 . Sheppard v. Olney, 271 Mass. 424 , 426-427. As to that issue the order is reversed. With respect to the other issues the order is affirmed.

Home ERNEST MORLEY vs. RAYMOND HOLDSWORTH & another, executors.

322 Mass. 742

November 28, 1947

Order sustaining demurrer affirmed. Judgment for the defendants. From an order sustaining a demurrer in this action of contract the plaintiff appealed. No recital or analysis of the agreement declared on is required. Palpably it was a corrupt bargain, to enforce which the courts will not lend their aid. The demurrer was rightly sustained.

Home JOSEPH PORESKY vs. REGISTRAR OF MOTOR VEHICLES.

322 Mass. 742

December 9, 1947

Decree affirmed. This is an appeal from a final decree dismissing a bill in equity to which a demurrer had been sustained. The bill alleges that the plaintiff "appeals to the court for his natural and constitutional right to use the highway in the ordinary and usual manner; that is, to drive to and from his place of employment, to shop, run errands . . . . In no event would he run a business in the highway or overreach anyone in the least in its use. The `right' has been the very life of man from time immemorial . . . . Never

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has it been contingent on one's financial status. But the defendant . . . in line of duty and in pursuance of the motor vehicle compulsory insurance statute, c. 90, Section 34A et seq. of G. L. (Ter. Ed.) refuses . . . [the plaintiff] plate and registration for his car which are necessary to the `right' sought," unless he first comply with that statute. There are prayers that the defendant be ordered to issue plate and registration to the plaintiff "for the purpose so set out above on payment of lawful fee." In a previous suit between the parties we held the statute to be constitutional. Poresky v. Registrar of Motor Vehicles, 319 Mass. 717 . In the present case the plaintiff, while accepting the constitutionality of the statute, argues that "he be exempted from the `statute' when in the exercise of the `right' he seeks." There is no basis for this discriminatory exemption in his favor. G. L. (Ter. Ed.) c. 90, Section 1A, as finally amended by St. 1934, c. 264, Section 2. O'Roak v. Lloyds Casualty Co. 285 Mass. 532 , 536. See Opinion of the Justices, 251 Mass. 569 , 602-603.