Connolly v. Phipps

• Decision Date: 14 September 1932
• Citation: 280 Mass. 263,182 N.E. 339
• Parties: CONNOLLY v. PHIPPS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 263

182 N.E. 339

CONNOLLY

v.PHIPPS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Sept. 14, 1932.

Appeal from Probate Court, Norfolk County; Joseph R. McCoole, Judge.

Suit by Thomas G. Connolly against Marie R. Phipps and others. From an order denying a motion to frame issues for trial by jury, respecting the will of Charles Fein, an appela was taken.

Order affirmed.

A. R. Shrigley and J. P. Keefe, both of Boston, for respondents.

M. Rosenthal and T. G. Connolly, both of Boston, for petitioner.

DONAHUE, J.

This is an appeal from an order of a judge of probate denying a motion to frame issues for a trial by jury respecting the will of Charles Fein. The only issues requested were whether the document offered for probate as his will was ‘executed according to law’ and whether it was ‘the actual will’ of Charles Fein. The contention of the contestants is that Fein did not sign the instrument in question. The motion was heard on oral statements of expected proof made by counsel for the proponent of the instrument and by counsel for the contestants, and on testimony of three persons who signed it as witnesses and of the attorney who drew it.

[3] The probate judge under the well established practice was justified in framing the requested issues only if he was satisfied on the case as presented before him that there was ‘a genuine and doubtful question of fact to be decided’ and was further satisfied that it was ‘supported by evidence of a substantial nature,’ on which might be founded ‘a reasonable hope for a result favorable to the’ contestants. Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384;Johnson v. Loring, 267 Mass. 310, 166 N. E. 622. The same problem that came before the probate judge is presented to this court on the appeal with the added factors that in any event his decision is here to be given some weight, such weight as the whole record shows it deserves (Clark v. McNeil, 246 Mass. 250, 256, 140 N. E. 922;Daly v. Hussey, 275 Mass. 28, 30, 174 N. E. 916), and that since oral evidence was introduced before the probate judge his decision on matters there embraced cannot here be reversed unless it appears from the whole record plainly wrong. Cook v. Mosher, 243 Mass. 149, 153, 137 N. E. 299;Union Trust Co. of Springfield v. Magenis, 259 Mass. 409, 411, 156 N. E. 542;Taylor v. Callahan, 265 Mass. 582, 584, 164 N. E. 445. In the present instance the probate judge heard the oral sworn testimony of three persons who signed as witnesses the instrument offered for probate and of the attorney who drew it, these being all the persons appearing to have been present at the time of its alleged execution. In deciding the narrow question of fact as to whether the decedent signed the instrument or whether it was the result of a conspiracy of the four persons involved to produce a false will, the probate judge had the obvious advantage which this court now does not have of seeing the witnesses face to face and estimating their...