Beal v. Davis

Carroll, J. This is an appeal from an order of the Probate Court, denying a motion of the contestant to frame issues for trial by a jury, on a petition for the allowance of the [177] will of Charles R. Hill. These issues the contestant moved to have framed: “ 1. Was the instrument purporting to be the last will of said Charles R. Hill dated March 3,1923 executed according to law? “2. Was the said Charles R. Hill at the time of the execution of said alleged will of sound mind? “ 3. Was the execution of said alleged will of said Charles R. Hill procured by the fraud or -undue influence of Waldo and Wifford Hill or any of them, exercised upon the said Charles R. Hill? ” No evidence was offered, but counsel for the contestant and counsel for the proponent of the will made extended statements as to the evidence within their knowledge and control. Cook v. Mosher, 243 Mass. 149. A probate appeal on a stenographic report of the statements of counsel as to the expected evidence is before this court exactly as.an appeal from a decree by a judge in equity with a full report of the evidence. Questions of law, as well as questions of fact, are to be determined by us, and it is our duty to examine the statements and the evidence relied on and to decide the case according to our own judgment, giving due regard to the findings of the judge of probate, and to the fact that his discretion in refusing to frame issues is of importance and weight, and will be carefully considered when his decision is before this court on appeal. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, supra. Clark v. McNeil, 246 Mass. 250, 255. Old Colony Trust Co. v. Pepper, 248 Mass. 263. Wilbar v. Diamond, 249 Mass. 568. On the first issue there was evidence that the testator made his mark to the will, his name being signed by his express direction. The statement of the proponent’s counsel1 showed that its execution was in all' respects as required by G. L. c. 191, § 1. In denying this issue the judge of probate was right. On the second issue (the unsoundness of mind of the testator) the contestant asserted that the testator was nearly seventy years of age, had suffered a shock, that a conservator had been appointed for his property in August, 1922, and that [178] the nurse, who was in attendance and witnessed the will, was of opinion that the testator was of unsound mind at the time the will was signed. On the other hand it appeared from the' statements of the proponent’s counsel, who related in great detail many remarks of the testator and referred to many facts and incidents, that the testator was in possession of his faculties, that he fully understood the business before him and was thoroughly competent to make a will. It was also stated that the nurse was prejudiced and biased, that shortly after making the will the testator was removed from her home, and that he complained of the lack of proper care on her part. We see nothing in the report of the expected evidence showing that the discretion of the probate judge was unwisely used. In our opinion, his decision in denying the framing of this issue should not be reversed. Old Colony Trust Co. v. Spaulding, 250 Mass. 400. Clark v. McNeil, supra. As to the third issue, we find nothing in the report of the evidence indicating any abuse of discretion. The decision of the Probate Court refusing the framing of issues must stand. Order affirmed.