268 Mass. 531 | Mass. | 1929
This is an appeal from the denial by a probate judge of the motion of Hazel G. Somers, a petitioner for the probate of the will of Samuel B. Hastings, late of Lexington, in the county of Middlesex, for issues to be framed for determination by jury. The three issues, relating to the alleged revocation of the will offered for probate by copy, were, in substance, as follows: (1) whether the will was revoked according to law; (2) whether Samuel B. Hastings was of sound mind at the time of the alleged revocation; and (3) whether the alleged revocation was
The motion was heard upon statements of counsel and such statements, taken by a stenographer appointed by the judge, appear in his report. At the conclusion of the statements of counsel, the counsel for the petitioner made certain requests for rulings. The judge, “without giving or denying any .of these requests,” denied “the petitioner’s motion for trial by jury on all of the issues.”
In her brief filed in this court, the petitioner admits that the will sought to be probated was duly executed in March, 1923, and that Samuel B. Hastings at that time was of sound mind and testamentary capacity. The petitioner further states that she-“does not feel that there was any evidence that the physical destruction of the will was insufficient, and does not ask this court to find that the first issue should have been framed. Nor does she urge that this court frame an issue on the question of the fraud or undue influence of Albert B. Hastings.”
With these admissions or concessions the obvious fundamental question for decision is, Does the power of the Probate Court to frame issues under G. L. c. 215, § 16, as interpreted in Fuller v. Sylvia, 240 Mass. 49, 52, include a power and discretion to frame issues bearing upon the revocation of a will? It is said in Fuller v. Sylvia, supra, “. . . trial by jury upon issues arising in the ordinary course of probate courts ... is not matter of right. Trial by jury in such cases ‘rests in the usages and discretion of the court,’” citing to the same effect, Davis v. Davis, 123 Mass. 590, 593, Fay v. Vanderford, 154 Mass. 498, Doherty v. O’Callaghan, 157 Mass. 90, and McKay v. Kean, 167 Mass. 524. Fuller v. Sylvia, supra, further decides that the power conferred upon the Probate Court by St. 1919, c. 274, § 7, now G. L. c. 215, § 16, to frame issues upon the application of a party in accordance with the practice established by the Supreme Judicial Court in like cases is no broader than that previously vested in the Supreme Judicial Court, and that the practice of the Probate Court in the exercise of the power thus conferred upon it' is to
Counsel have not brought to our attention and we are unable to find any case in this Commonwealth where the Supreme Judicial Court has allowed issues to be framed solely in connection with the revocation of a will duly made, signed, executed and declared as the last will of the testator in the presence of three competent witnesses who, as attesting witnesses thereto, attested and subscribed their names as such in the presence of the testator and at his request. Four cases, Wallis v. Wallis, 114 Mass. 510, Tarbell v. Forbes, 177 Mass. 238, Giles v. Giles, 204 Mass. 383, and Aldrich v. Aldrich, 215 Mass. 164, appear in our reports wherein an issue of fact was framed in connection with an alleged revocation of a will offered for probate. In each of the above eases there were other issues of fact properly framed which had no relation to the issue whether the testator of the will offered for probate had revoked that will. Except as may be inferred from the above decisions, we know of no practice to frame issues as to the revocation of a will. The procedure in the cases cited was exceptional. It should not be extended and does not establish a practice as to cases like the present.
It becomes unnecessary to consider whether the facts as alleged in the statement of the counsel for the petitioner presented a veritable controversy of fact upon the issue of the testamentary capacity of Samuel B. Hastings at the time of the alleged revocation.
It results that the motion was denied rightly and that the decree must be affirmed.
Decree accordingly.
