Hannon v. Gorman

• Decision Date: 26 January 1937
• Citation: 6 N.E.2d 433,296 Mass. 437
• Parties: HANNON et al. v. GORMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 437

6 N.E.2d 433

HANNON et al.

v.GORMAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 26, 1937.

Petition by James J. Hannon and another for proof of the will of Mary E. Gorman, deceased, wherein Ralph W. Gorman and others filed a motion to frame jury issues. From an order denying their motion, Ralph W. Gorman and others appeal.

Order affirmed.Appeal from Probate Court, Middlesex County; Beane, Judge.

R. B. Owen and S. S. Ganz, both of Boston, for appellants.

J. E. Luby and C. R. Halloran, both of Framingham, for appellees.

RUGG, Chief Justice.

This is an appeal from an order denying a motion to frame issues for trial by jury concerning the execution of an instrument offered for probate as the last will of Mary E. Gorman, deceased, late of Framingham. The issues set forth in the motion were (1) whether the instrument was executed according to law, (2) whether the decedent was of sound mind at the time of the execution of the alleged will, and (3) whether the execution of the alleged will was procured by the fraud or undue influence of James J. Hannon. The motion was heard upon oral statements by counsel for the respective parties as to the evidence expected to be produced at the trial.

The principles of law governing the framing of issues 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 whether there appears to be a genuine question of fact supported by evidence of such substantial nature as to afford ground for reasonable expectation of a result favorable to the party requesting the framing of issues. Smith v. Patterson, 286 Mass. 356, 358, 190 N.E. 536;Terry v. King, 286 Mass. 598, 190 N.E. 820;Briggs v. Weston (Mass.) 2 N.E.(2d) 466;Baker v. Owens (Mass.) 199 N.E. 751. The decision of the probate judge adverse to the motion is entitled to weight even though the record discloses everything which was before him. An element of discretion is vested in him which will be given weight on appeal. Bemis v. Andrews, 280 Mass. 409, 411, 182 N.E. 816;Granston v. Hallock, 281 Mass. 182, 183 N.E. 351.

A recital of expected testimony as made on the one side and on the other would add nothing to the jurisprudence of the Commonwealth. Ecklund v. Ecklund, 288 Mass. 517, 193 N.E. 43. A careful reading of the record shows that the denial of the motion was right. The case falls within the class illustrated by Swift v. Charest, 268 Mass. 47, 167 N.E. 250;Johnson v. Talbot, 255 Mass. 155, 150 N.E. 900;Taylor v. Callahan, 265 Mass. 582, 164 N.E. 445;Berry v. Leonard, 273 Mass. 409, 173 N.E. 511, and Logan v. Driscoll, 278 Mass. 450, 180 N.E. 297, and is distinguishable from cases like Tarr v. Vivian, 272 Mass. 150, 172 N.E. 257;Sheppard v. Olney, 271...