Bacigalupo v. Cuneo

• Decision Date: 04 December 1931
• Citation: 277 Mass. 474,178 N.E. 623
• Parties: BACIGALUPO v. CUNEO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 474

178 N.E. 623

BACIGALUPO

v.CUNEO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1931.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Petition by Frank Bacigalupo against Giovanni Cuneo and others for the probate of a will. From an order denying a motion to frame issues to be tried by a jury, an appeal was taken.

Order affirmed.

Daniel W. Casey, or Boston, for proponent Frank Bacigalupo.

Samuel L. Bailen and Albert B. Fopiano, both of Boston, for contestants.

RUGG, C. J.

This is an appeal from an order denying a motion to frame issues to be tried by a jury upon a petition for the probate of an instrument purporting to be the last will of a resident of Boston and signed by his mark. From the statements made at the hearing it appeared that the decedent, a native of Italy, was unmarried and had resided in this country about twenty-five years, and could speak English, although rather poorly, and write his name in English; that his next of kin were a sister residing in Boston with whom he had been friendly and intimate, a brother, formerly associated with him in business, for the last ten years or more a resident of California. with whom the decedent was not on good terms, and a brother and sister residing in Italy, the latter being in such condition that a guardian ad litem was appointed for her, and with these two the decedent had not had contacts for a considerable time; that the decedent did not live with any of his relatives but lived alone; that by the instrument offered for probate as the last will all the property of the decedent was given to his sister resident in Boston, her son was appointed as executor, and it is stated that all his other relatives have been intentionally omitted; that the decedent had been a heavy drinker and on account of some excesses and exposure was found seriously ill with pneumonia and was sent to a hospital on January 13, 1931, and died there three days later; that during a considerable portion of this period he was irrational. The will was drafted and caused to be typewritten by an attorney at the request of a daughter of the sister of the decedent, and was taken to the hospital ready for execution. The foregoing facts appear to be substantially undisputed.

The attorney who drafted the will made a statement before the probate judge to the effect that, although requested to draft the will by a niece of the decedent, he went to the hospital, engaged the decedent in conversation...