Opinion
April 3, 1961.
Arthur M. Gilman, ( Walter H. McLaughlin, Jr., with him,) for the contestants.
David R. Pokross, ( Joseph T. Fahy with him,) for the proponents.
Order denying jury issues affirmed. The sole issue before us is the testamentary capacity of the testator at the time of the execution of his will on July 9, 1958. The expected testimony proffered by the contestants was not such as to require the judge to conclude that the evidence was of "such substantial nature as to afford reasonable expectation of a result favorable to the moving party." Boston Safe Deposit Trust Co. v. Blaisdell, 333 Mass. 51, 56. Spilios v. Bouras, 337 Mass. 176, 177. The expected testimony of a psychiatrist who did not treat the decedent during his lifetime and did not know him carries little weight when contrasted with the anticipated evidence of a psychiatrist who had treated the decedent at various times beginning January 5, 1956, and up to two weeks before the execution of the will. Nichols v. Sullivan, 340 Mass. 783. The anticipated evidence of the proponents was in such volume and of such apparent credibility that it effectively rebutted the prospective evidence of the contestants. The judge had every right to conclude that there was no substantial question of testamentary capacity to submit to a jury. Taylor v. Callahan, 265 Mass. 582, 584. Nichols v. Sullivan, 340 Mass. 783.