268 Mass. 47 | Mass. | 1929
This is an appeal from an order denying a motion to frame issues for a jury presented in behalf of one niece, who contests a petition for the allowance of an instrument offered for probate as the last will of Ann McCullough, deceased. The motion requested the framing of an issue touching the due execution of the instrument as a will. There is nothing whatever in the record to indicate that there was not compliance with every legal requirement as to the execution of the instrument. That issue may be laid out of the case. There were requests also for issues touching the soundness of mind of the decedent and her freedom from the undue influence of a nephew named Cornelius J. McCullough at the time of the execution of the instrument. It appears from the petition that the decedent left ten heirs at law and next of kin, the nearest of whom was a brother, and the others nephews and nieces. The instrument offered for probate as the last will was dated in May, 1921, when the decedent was seventy years old, and she died in November, 1925, leaving an estate of about $8,000. By the instrument offered as the will, gifts were made to six relatives and to her pastor, and the residue was given to St. Vincent’s Orphans’ Home of Fall River.
The hearing was on statements of counsel and a statement, made with the consent of all parties, of John T. Swift, Esq., who drew the will, and with general statements of evidence in behalf of the contestants, including an assertion that the attending physician was of opinion that she was of unsound mind. The statements for the contestant taken at their superficial value might be thought to indicate some mental incapacity on the part of the decedent. On the question of undue influence, it was said that there were declarations of the decedent and evidence of rough and overbearing conduct toward her on the part of the person named as exercising the
It is plain from these findings that there was no error of law in the denial of the motion. The judge had in mind the governing rule of law. Fuller v. Sylvia, 240 Mass. 49. The statements of expected evidence put forward in behalf of the contestant were vague. They were deficient in particularity. They may well have been regarded as not affording the proper foundation for the framing of issues for a jury. The cases of Union Trust Co. v. Magenis, 259 Mass. 409, and Taylor v. Callahan, 265 Mass. 582, are the extreme limit beyond which the court is not inclined to go in upholding the probate judges in denying jury issues. But the case at bar falls within well established lines of decisions. Clark v. McNeil, 246 Mass. 250. Burroughs v. White, 246 Mass. 258. McCormack v. Quilty, 266 Mass. 402, and cases there collected.
Order denying motion to frame jury issues affirmed.