Opinion
December 8, 1943.
H.A. Gregg, ( W.H. McLaughlin with him,) for the respondents.
J.P. Cleary, ( A.B. McGregor with him,) for the petitioners.
Order denying jury issues affirmed. This is an appeal from an order of the Probate Court, in the matter of the alleged will of Fred F. Swett, late of Haverhill, denying a motion by the contestants for the framing of issues for trial by a jury. The argument in behalf of the contestants is now directed only to the issue of testamentary capacity. 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.