Norcross v. Mahan

Lummus, J.

This is an appeal by the proponent of a will from a decree of a probate court disallowing it. We have before us a finding of material facts and a report of all the evidence. Upon oral evidence the judge found that the decedent signed the instrument, but that one of the supposed attesting witnesses, who signed a few days after the decedent and the others, did not sign in the presence of the testator. Mendell v. Dunbar, 169 Mass. 74 . He found, also, that the proponent had failed “to show that the instrument was the voluntary testamentary act of” the decedent. Fleming v. Morrison, 187 Mass. 120 .

*404 ' Appellate procedure in probate cases, under G. L. (Ter. Ed.) c. 215, §§ 9-12, follows the practice in equity. Although all findings of fact, as well as any rulings of law, are open for review, by a familiar rule, already sufficiently elaborated, findings based' upon oral evidence will not be overturned unless plainly wrong. Berman v. Coakley, 257 Mass. 159, 162 . Bankers Trust Co. v. Dockham, 279 Mass. 199, 200 . Tuells v. Flint, ante, 106, 108-109. It is enough to say that an examination of the evidence does not convince us that the findings are plainly wrong. In a case like this, where marshalling the evidence would elucidate no principle of law and would interest no one but the parties, the court refrains from discussion. Reed v. Reed, 114 Mass. 372 .

Requests by the appellant for rulings of law are printed in the record, but they have no standing under equity practice, at least in the absence of an exception shown in the report of the evidence. Graustein v. Dolan, 282 Mass. 579 . The case of Woodworth v. Woodworth, 271 Mass. 398 , is not to be regarded as an authority as to what is open on appeal in equity.

Decree affirmed.