Wellington v. de Cordova

Rugg, C.J.

A petition was duly presented to the Probate Court for the allowance of the will of Julian Dana de Cordova, late of Brookline. Alice de Cordova appeared in that proceeding, alleging that she was the widow of the deceased. Her status was denied. She presented a petition that several issues be framed for trial by jury, designed bo 'establish whether she is the widow of the deceased. Her appeal from the refusal of the judge of probate to frame issues brings the case here.

It is manifest that the question whether Alice de Cordova is the widow of the decedent is preliminary to the question whether the instrument offered for probate should be allowed as his last will. Although the two issues might be tried together, it was entirely proper that the status of Alice de Cordova be tried and decided first. Goff v. Britton, 182 Mass. 293 . Pattee v. Stetson, 170 Mass. 93 .

*231 No error of law is disclosed on this record. Instances may be found in the books where an order has been made for the trial to a jury of issues more or less similar to those here requested. See, for example, Phillips v. Chase, 203 Mass. 556 , where questions as to undue influence and coercion in an adoption were framed. In Lufkin v. Lufkin, 182 Mass. 476 , a question like that here prayed for was tried to a jury. These cases are rare exceptions and do not indicate a policy. The general practice of the Supreme Judicial Court prior to the enactment of St. 1919, c. 274, § 7, now G. L. c. 215, § 16, was to frame issues for trial to a jury only in cases involving the probate of wills.' That practice is discussed fully and set out at length in Fuller v. Sylvia, 240 Mass. 49 . It is not necessary to traverse that ground again. What there was said is applicable to the case at bar. The action of the judge of probate was in conformity to the principles there stated. It was in harmony with numerous more recent decisions. Cook v. Mosher, 243 Mass. 149 . Clark v. McNeil, 246 Mass. 250 . Burroughs v. White, 246 Mass. 258 . Connell v. Sokoll, 247 Mass. 203 . Smith v. Brewster, 247 Mass. 395 . Old Colony Trust Co. v. Pepper, 248 Mass. 263 . Old Colony Trust Co. v. Spaulding, 250 Mass. 400 , Wilbar v. Diamond, 249 Mass. 568 . Beal v. Davis, ante, 175.

Decree dismissing motion affirmed.