This is an appeal from an order of the Probate Court for the county of Middlesex dismissing the contestant’s petition “to reopen for hearing the petition for jury issues” in the matter of the allowance of the will of Nannie E. Wyman, deceased.
The material facts are as follows: The decedent died in June, 1929. An instrument purporting to be her will was presented for allowance in the Middlesex Probate Court. A motion- for jury issues was duly filed by the respondent, and in October, 1929, the issues were waived. After a hearing the will was allowed by a judge of the Probate Court. An appeal was taken to this court, and the decree reversed for errors incident to the reception of testimony. Preston v. Peck, 271 Mass. 159,
Whatever the original right to have issues framed may have been, as to which see Fuller v. Sylvia, 240 Mass. 49, it is plain a motion or petition for a rehearing to frame issues after such motion has been voluntarily and formally waived, and after a hearing on the merits has been had, presents no question of right.
Order dismissing petition affirmed.