Thomas G. Connolly v. Marie R. Phipps
| Decision Date | 14 September 1932 |
| Citation | 280 Mass. 263 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | THOMAS G. CONNOLLY v. MARIE R. PHIPPS & others. |
May 9, 1932.
Present: RUGG, C.
J., WAIT, FIELD & DONAHUE, JJ.
Probate Court, Jury issues, Findings by judge, Appeal. Will, Validity.
At the hearing of a motion, by respondents in a petition for proof of a will, for jury issues, whether the document offered for probate was
"executed according to law" and whether it was "the actual will" of the alleged testator, oral statements of expected evidence were made by counsel for the respective parties and the judge heard testimony of three persons who signed the document as witnesses and of an attorney who drew it, they being all the persons who appeared to have been present at the time of its alleged execution. Evidence was offered that at the time of the alleged execution the decedent was mentally and physically well, while six months later he was neither. The contestants offered testimony of handwriting experts, based on standards of writing made shortly before the death of the decedent when he was apparently in a weakened physical condition, that in their opinion the signature on the document was not the signature of the decedent and also evidence of oral and written statements of the decedent inconsistent with the execution of the document but made several months after its date at a time when he was very ill after attempted suicide.
The motion was denied. Upon appeal by the respondents, it was held, that (1) The decision by the judge of probate upon the oral evidence heard by him should not be reversed by this court unless it appeared from the whole record to be clearly wrong;
(2) The denial of the motion by the judge involved a conclusion by him that the attesting witnesses told the truth, and the further conclusion that on the record before him, including the statement of expected proof made by counsel for the contestants, there was not contrary evidence of a substantial nature on which "there could warrantably be based a reasonable hope for a result favorable to the contestants";
(3) The record disclosed no error of law in the denial of the motion.
PETITION, filed in the Probate Court for the county of Norfolk on November 25 1931, for proof of the will of Charles Fein, late of Brookline.
The next of kin of the alleged testator filed the motion for jury issues described in the opinion. The motion was heard by McCoole, J Material portions of oral statements by counsel of expected evidence, and oral testimony presented, are described in the opinion. The motion was denied. The respondents appealed.
A.R. Shrigley, (J.P. Keefe with him,) for the respondents.
M. Rosenthal, (T.
G.Connolly with him,) for the petitioner.
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.
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...
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