337 Mass. 772 | Mass. | 1958
Order denying jury issues affirmed. This is an appeal from an order of the Probate Court denying a motion to frame issues for a jury in the matter of the allowance of a will of Ella S. LaRouche, late of Lynn. The decedent died January 22, 1957, leaving as her only heirs a daughter Edith Preston, who was the sole beneficiary named in the will, and a son Lyndon H. LaRouche, who contests its allowance. The appeal is prosecuted only in respect to the issue whether the will was procured by the fraud and undue influence of Edith Preston and her husband Herbert E. Preston. From statements by counsel of expected evidence, it appears that, although eighty-six years of age when the will was executed on April 21, 1955, the decedent was a woman accustomed to making her own business judgments, competent to care for her property, and unlikely to be subject to the influence of others in her disposal of it. It is plain that the averments of undue influence are based mainly on suspicion and conjecture. Flynn v. Prindeville, 327 Mass. 266, 269. There was no error in the order of the judge. See Neill v. Brackett, 234 Mass. 367; Fuller V. Sylvia, 240 Mass. 49; Hannon v. Gorman, 296 Mass. 437.