Fuller v. Sylvia

Decision Date30 November 1921
PartiesFULLER et al. v. SYLVIA.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Probate Court, Bristol County.

Proceeding by Frederick S. Fuller and others for the probate of the will of Antone Lial Sylvia, deceased, in which Manuel L. Sylvia and others asked that issues of fact be certified to a jury. From a decree denying such motion, the contestants appeal. Affirmed.

The petition asked that the following issues be certified to a jury: (1) Whether the document presented as the will of deceased was executed in accordance with the law of the commonwealth; (2) whether the testator was of sound and disposing mind and memory at the time of the execution of the alleged will; (3-7) whether its execution was procured by the fraud or undue influence of various persons therein named.

Joseph T. Kenney, of New Bedford, for contestants.

Judah Semonoff, of Providence, R. I., for respondent.


This is an appeal from a decree of the probate court denying a petition by certain heirs at law of the alleged testator, who contest the allowance of his will, to frame issues of fact to be tried by a jury. An appeal from such an interlocutory decree comes directly to this court under G. L. c. 215, § 22, without waiting until the case is ripe for final decree. That statute makes an exception in this particular to the usual equity practice of not considering appeals from interlocutory decrees until the case is ripe for final decree. Weil v. Boston Elevated Railway, 216 Mass. 545, 546, 104 N. E. 343.

The record in the case at bar consists of (1) the petition for the allowance of the will, (2) citation thereon with return or service, (3) copy of the will, (4) petition for the framing of jury issues, (5) decree denying the same, and (6) appeal from that decree. There is no report of the evidence and there is no report of the material facts or of the questions of law, if any, presented respecting the petition for jury issues. G. L. c. 215, §§ 11, 12.

The question to be decided is whether there is any error of law apparent upon this record. Dorsey v. Corkery, 227 Mass. 498, 116 N. E. 870. Since there is no report of evidence (Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263) and no finding of fact (First Baptist Society in Brookfield v. Dexter, 193 Mass. 187, 79 N. E. 342), the broader questions which sometimes arise on appeal are not here disclosed. The single point presented is whether as matter of law the probate court was bound on request to frame issues to be tried to a jury.

Respecting strictly probate matters it is provided by G. L. c. 215, § 16, that the probate court, ‘upon the application of a party and in accordance with the practice established by the Supreme Judicial Court in like cases, may direct that any issues of fact shall be tried by a jury in the superior court,’ and shall settle the form of such issues.

It is too well settled for discussion that trial by jury upon issues arising in the ordinary course of probate courts under our system of division of judicial powers is not matter of right. Trial by jury in such cases ‘rests in the usages and discretion of the court.’ Davis v. Davis, 123 Mass. 590, 593;Fay v. Vanderford, 154 Mass. 498, 28 N. E. 681;Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726,17 L. R. A. 188, 34 Am. St. Rep. 284;McKay v. Kean, 167 Mass. 524, 46 N. E. 120.

The express words of said section 16 import into the practice of framing jury issues by the probate court (for the first time conferred upon that court by the recent St. 1919, c. 274, § 7, now embodied in said section 16) the practice established by the Supreme Judicial Court in like cases. We interpret this to mean the usage of the court as it has come to be applied apart from strict legal right. The power of the probate court to frame issues is as broad and no broader than that previousy vested in the Supreme Judicial Court as the supreme court of probate.

[5] 1. The practice established by the Supreme Judicial Court under this branch of its jurisdiction has been to frame issues for trial to a jury only in cases involving the probate of wills. That is the general rule. The history of probate jurisdiction in this commonwealth makes it clear that the questions presented in that court commonly require adjudication by a judge familiar with domestic relations and not by a jury. Questions of the appointment and removal of administrators, guardians and conservators, and of adoption, the settlement of accounts, the determination of controversies respecting separate support and maintenance, and as to custody and support of children and numerous other kinds of probate litigation, which need not be enumerated, require the sympathetic wisdom of an experienced judge, rather than the decision of a jury.

Rare instances may be found where this rule has not been followed. For example, questions of undue influence and coercion in an adoption were submitted to a jury in Phillips v. Chase, 203 Mass. 556, 89 N. E. 1049,30 L. R. A. (N. S.) 159,17 Ann. Cas. 544, although the sound practice apparently was established to the contrary in McKay v. Kean, 167 Mass. 524, 46 N. E. 120, and Fiske v. Pratt, 157 Mass. 83, 31 N. E. 715. The issue of legitimacy commonly has been regarded as one for the court (Gibson, Appellant, 154 Mass. 378, 28 N. E. 296;Houghton v. Dickinson, 196 Mass. 389, 82 N. E. 481), although possible exceptions in this practice may be discovered. Without undertaking to find all the instances in the books, it is to be said that the thoroughly established practice of the Supreme Judicial Court for many years has been to frame issues for trial by jury in will cases alone.

2. It has been the extablished practice not to grant issues in all will cases as matter of course. The mere request for the framing of such issues is not enough, without the presentation of facts on which to found a reasonable hope for a result favorable to the party requesting the...

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151 cases
  • Claffey v. Fenelon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Mayo 1928
    ...was correct in form and in substance. It was in accordance with long established practice in the courts as declared in Fuller v. Sylvia, 240 Mass. 49, 54, 133 N. E. 384, where the customary forms of issues in will cases are set forth. It conformed to the standard of testamentary capacity fi......
  • Wellman v. Carter (In re Carter's Estate)
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 25 Mayo 1934
    ...The principles governing the action of a judge of probate in passing upon such a motion were fully set forth in Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384, and the question before this court on an appeal from a denial of a motion for such an issue heard upon statements of counsel has......
  • Hannon v. Gorman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 Enero 1937
    ...in a case like the present have been frequently stated, are thoroughly established, and need not be repeated at length. Fuller v. Sylvia, 240 Mass. 49, 133 N.E. 384;Cook v. Mosher, 243 Mass. 149, 137 N.E. 299; Clark v. McNeil, 246 Mass. 250, 140 N.E. 922. Briefly stated, the question is whe......
  • McIntosh v. McIntosh
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 5 Abril 1928
    ...for trial by jury in petitions for the allowance of wills have been stated with care and fullness in recent decisions. Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384;Cook v. Mosher, 243 Mass. 149, 152, 153, 137 N. E. 299. It is enough to refer to these adjudications without repeating or ......
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