Home WINIFRED CHASE KNICKERBOCKER vs. PAULA J. OLSEN & another [Note 1] (and a companion case [Note 2]).

352 Mass. 768

March 31, 1967

These actions of tort are brought by the plaintiff against the objection of her guardian, who was appointed by reason of her mental illness. G. L. c. 201, Section 6 (as amended through St. 1956, c. 314, Section 2). A judge in the Superior Court in each case by order sustained answers in abatement and also ordered to be vacated the appearance of the plaintiff's attorney. Rule 20 of the Superior Court (1954). The plaintiff appealed. The appeals do not lie. There is no "order decisive of the case founded upon matter of law apparent on the record." G. L. c. 231, Section 96. Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167 , 168-169.

Appeals dismissed.


[Note 1] C. Gordon Olsen.

[Note 2] The companion case is by the same plaintiff against Salomon Gagnon.


352 Mass. 768

March 31, 1967

This an appeal from a denial by the Probate Court of a motion to frame jury issues on a petition for the allowance of a will. In addition to oral statements made to the judge written offers of proof were presented. The judge made a report of material facts. He found "that there was no genuine or doubtful question of fact" affording a "reasonable hope" for a result favorable to the contestants. "The principles of law applicable to the subject of jury issues are so familiar that they need not be set forth at length. Briefly stated, there must be a genuine and doubtful

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question of fact supported by evidence of such substantial nature as to afford reasonable expectation of a result favorable to the moving party. . . . The scope of an appeal in such cases is similar to an appeal in equity with a report of the evidence. It is our duty to examine the statements of expected evidence and to decide the case in accordance with our own judgment, giving due weight to the decision of the judge." Abbott v. Noel, 337 Mass. 133 , 138. We see no reason for reaching a different conclusion than that of the judge.

Order denying motion for jury issues affirmed.