Wilbar v. Diamond

Pierce, J.

This is an appeal from an order of the Probate Court denying a motion of the contestant to frame issues for a jury trial on a petition for the allowance of the will of Nellie E. McCloskey. The issues which the contestant and appellant moved to have framed are (1) Was the instrument offered as the will of the testatrix duly executed? (2) Was the testatrix of sound and disposing mind and memory at the time of the execution of said will? and (3) Was the execution of said will procured through the fraud or undue influence of Susie L. Megley and Lillian Grady, or either of them? No evidence was heard and no stenographer was appointed *573 under G. L. c. 215, § 18, to report the statement of counsel for the contestant as to the evidence within his knowledge and control. In lieu of evidence, counsel for the contestant and for the petitioner, respectively, made extended statements as to their expectation of evidence to be presented at a trial, which, at the request of the contestant under G. L. c. 215, § 11, are reported by the judge of probate as findings of material facts.

Cases which are appealed to this court on decisions made by probate judges on statements of counsel as to expected evidence stand before this court precisely like cases on appeal from a decree entered by a judge in equity with full report of the evidence, oral or documentary. Cook v. Mosher, 243 Mass. 149 . Those based merely on statements of counsel as to expected proof have a closer resemblance to appeals in equity where the evidence is documentary than they do to the class of appeals where there is a report of evidence or a finding of fact, Fuller v. Sylvia, 240 Mass. 49 ; with the important distinction that there is an element of discretion in the action of the judge of probate respecting the framing of issues for a jury, which is of weight and will be carefully regarded when his decision is brought before this court on appeal. Clark v. McNeil, 246 Mass. 250, 255 . Smith v. Brewster, 247 Mass. 395 . Old Colony Trust Co. v. Pepper, 248 Mass. 263 .

It is plain the evidence which counsel stated they expected to be able to produce at the trial on the suggested issues of fact was insufficient to establish that the will was not duly executed and that the testatrix was not of sound and disposing mind or memory, in view of the finding by the judge that, “ The items for the will were given by testatrix to her attorney and were not prompted by any third person. Mrs. Megley was not in the house when the will was executed. The will was read to testatrix before signing, she expressed satisfaction at its contents, declared it to be her. will, and asked the witnesses to sign. The testatrix was sixty-four years old, intellectual and of full capacity.” The offer of proof in support of the suggested issue, whether the will was procured to be executed through the fraud or undue *574 influence of Susie L. Megley and Lillian Grady, or either of them, presents alleged facts which might well have induced the judge to frame the requested issue in this regard; but we cannot say that his refusal to do so in the light of the whole record was such an improper exercise of discretion as requires that the order refusing the issue should be set aside. Fuller v. Sylvia, supra.

Order afirmed.