Wilbar v. Diamond
| Decision Date | 16 June 1924 |
| Citation | 144 N.E. 462,249 Mass. 568 |
| Parties | WILBAR v. DIAMOND. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Plymouth County; Loyed E. Chamberlain, Judge.
In the matter of the estate of Nellie E. McCloskey, deceased. Petition for probate of will by Winfield M. Wilbar contested by William F. Diamond. From an order denying a motion of contestant to frame issues for a jury trial, he appeals. Affirmed.
Parker & Fortier and Stewart B. McLeod, all of Brockton, for appellant.
John J. Geogan, of Rockland, for appellee.
This is an appeal from an order of the probate court denying a motion of the contestant to frame issues for a jury trial on a petition for the allowance of the will of Nellie E. McCloskey. The issues which the contestant and appellant moved to have framed are (1) was the instrument offered as the will of the testatrix duly executed, (2) was the testatrix of sound and disposing mind and memory at the time of the execution of said will, and (3) was the execution of said will procured through the fraud or undue influence of Susie L. Megley and Lillian Grady, or either of them? No evidence was heard and no stenographer was appointed under G. L. c. 215, § 18, to report the statement of counsel for the contestant as to the evidence within his knowledge and control. In lieu of evidence, counsel for the contestant and for the petitioner, respectively, made extended statements as to their expectation of evidence to be presented at a trial, which, at the request of the contestant under G. L. c. 215, § 11, are reported by the judge of probate as findings of material facts.
Cases which are appealed to this court on decisions made by probate judges on statements of counsel as to expected evidence stand before this court precisely like cases on appeal from a decree entered by a judge in equity with full report of the evidence, oral or documentary. Cook v. Mosher, 243 Mass. 149, 137 N. E. 299. Those based merely on statements of counsel as to expected proof have a closer resemblance to appeals in equity where the evidence is documentary than they do to the class of appeals where there is a report of evidence or a finding of fact (Fuller v. Sylvia, 240 Mass. 49, 133 N. E. 384), with the important distinction that there is an element of discretion in the action of the judge of probate respecting the framing of issues for a jury, which is of weight and will be carefully regarded when his decision is...
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...250, 140 N. E. 922;Burroughs v. White, 246 Mass. 258, 140 N. E. 940;Cummins v. McCawley, 241 Mass. 427, 135 N. E. 479;Wilbar v. Diamond, 249 Mass. 568, 144 N. E. 462;Adams v. Blair, 255 Mass. 152, 151 N. E. 110;Beal v. Davis, 251 Mass. 175, 146 N. E. 354;Old Colony Trust Co. v. Pepper, 248 ......
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