In re McNeil's Estate

• Decision Date: 14 September 1923
• Citation: 140 N.E. 922,246 Mass. 250
• Parties: In re McNEIL'S ESTATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 250

140 N.E. 922

In re McNEIL'S ESTATE.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1923.

Appeal from Probate Court, Suffolk County; Wm. M. Prest, Judge.

Proceeding for the allowance of the will of Neil McNeil. From orders denying a motion to frame issues for a jury trial, certain parties appeal. Affirmed.

E. O. Proctor and J. P. Feeney, both of Boston (Sherman L. Whipple, of Boston, of counsel), for appellants.

Clark, Vanderhoof & Little, Henry F. Hurlburt, and Albert W. Rockwood, all of Boston, for appellee.

RUGG, C. J.

This is an appeal from a denial by a judge of probate of a motion for the framing of issues for trial to a jury on a petition for the allowance of a will. The motion was heard and decided in the probate court on statements of counsel for the respective parties as to their expectation of evidence to be presented at a trial. These statements were taken stenographically and are reported in the record in lieu of evidence. This was proper practice in the discretion of the judge. No rulings of law are presented for examination. The motion simply was denied and an appeal taken.

The contention of the appellants is that the denial of their motion on their statement of expected evidence was so erroneous that it should be reversed and an order be entered framing issues.

The principles by which the probate court must be governed in reaching a decision on a motion for jury issues have recently been elaborated. Fuller v. Sylvia, 240 Mass. 49, 52, 53, 133 N. E. 384. Those principles were but an amplification of what had been declared in earlier decisions collected in that opinion. It would be vain to repeat or to restate them. They are reaffirmed. They must be the guide of probate judges in passing upon such motions as that here presented.

[2][3][4] The function of this court in reviewing a decision made by the probate court on such a motion cannot readily be formulated in such words that it can be applied to the record of a statement of anticipated proof made by counsel with the same certainty as can standards of weights and measures to material substances. In general the practice on probate appeals to this court conforms to equity practice so far as practicable and applicable. Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185. In the recent case of Cook v. Mosher, 243 Mass. 149, 137 N. E. 299, reference was made, with adequate citation of authorities, to the differing practice prevailing in this court on the two classes of equity appeals, one with report of oral testimony and the other with report of evidence mainly documentary. That familiar difference need not be re-explained. In the former class of cases this court examines the report of the evidence and reaches its own conclusion as to facts, but does not reverse a decision of a trial judge based on oral testimony unless plainly wrong, for the reason that he, having seen the witnesses face to face, is in a better position to pass upon their credibility and the weight to be attributed to their words than an appellate court only reading the printed page. In the latter class of cases nothing depends upon the weight and credibility of testimony given orally, and the appellate court stands where the trial court stood with respect to weighing evidence and drawing inferences. It was held in Cook v. Mosher that, while a case coming, as this case does, on appeal from a decision by a probate court based on statements of counsel as to expected proof, was nearly on the same footing as the latter class of cases, yet this court ordinarily will not reverse an order of a probate judge respecting the framing of issues. That implies that there is an element of discretion in the action of the probate judge. While cases of this kind are nearly like equity cases coming before this court on appeal where the evidence is documentary, they are not identical, and precisely the same rules of law are not applicable. Likeness does not mean sameness nor import identity of governing principles. Houghton v. Field, 2 Cush. 141, 145;Bliss v. Bliss, 221 Mass. 201, 211, 109 N. E. 148, L. R. A. 1916A, 889. Decisions made by probate judges on statements of counsel as to expected evidence are not utterly disregarded by this court, when brought here on appeal. We do not decide such a case wholly anew as if presented to us for the first time. Some weight is attributed to the decision of the probate judge. On the other hand, it is made the duty of the probate court by G. L. c. 215, § 16, to act upon application of parties for framing issues to a jury in will cases ‘in accordance with the practice established by the supreme judicial court in like cases.’ That is a matter which in the nature of things cannot rest in the discretion of the probate court. It must be subject to the corrective determination of this court. Otherwise there could be no assurance of uniformity of practice in the several counties of the commonwealth, and great diversity of view might gain foothold in different parts of the state touching the practice established by this court while exercising exclusive jurisdiction of that subject, without any means for determining what that practice was. Therefore decisions like McKay v. Kean, 167 Mass. 524, 526, 46 N. E. 120, to the effect that that whether issues should be framed is a matter within the discretion of the court, are not strictly applicable. The function of this court in such appeals as described in Cook v. Mosher is as explicit as seems practicable at present. The weight to be given to the decision of the probate judge is that to which it seems entitled in the light of the whole record.

The statements of counsel in the case at bar present a close question on the...