Opinion
May 11, 1943.
C.J. McGilvray, for the respondents.
W.J. Holbrook, for the petitioner.
Order denying jury issues affirmed. This is an appeal from an order of the Probate Court in the matter of the alleged will of Ellen F. Bates, late of Quincy, denying a motion by the contestants for the framing of issues for trial by jury. The issue of due execution of the will is waived by the contestants, and the argument in their behalf is now directed to the issue of soundness of mind of the deceased and to the issue of undue influence. Upon consideration of the statements of expected evidence — which need not be recited — in the light of the established principles of law governing the framing of such issues and review on appeal after action of the Probate Court on motions for the framing of such issues — which have been frequently stated and need not be restated — including recognition of the element of discretion vested in the probate judge, we conclude that there was no error in the denial of this motion. See Hannon v. Gorman, 296 Mass. 437.