Adams v. Blair , 255 Mass. 152 ( 1926 )

Carroll, J.

This is an appeal from an order of the Probate Court, denying a motion to frame issues for a jury, upon a petition for the probate of the last will and codicil of Edmund Dana Barbour, late of Boston, who died March 5, 1925, in his eighty-fourth year, leaving an estate of about $3,300,000. The will is dated June 11, 1914, and the codicil January .10, 1921. His daughter, the contestant, is the sole surviving child. To her he gave “two hundred thousand dollars in cash, free of all federal and state inheritance taxes,” and “twenty thousand dollars per annum in quarterly payments.” The issue is, whether the testator was of sound mind when the will and codicil were executed. In the Probate Court the contestant filed a written offer of proof, supplemented by oral statements. Later testimony, which was given by a well known alienist, it was agreed, would be corroborated by another alienist, if called upon to testify. A stenographer was appointed under G. L. c. 215,'§ 18. The statements of counsel and the testimony of the physicians are part of the record.

The framing of issues for a jury, on a petition for the proof of a will, under G. L. c. 215, § 16, is a matter for the sound discretion of the court. It is unnecessary to recite the evidence; an examination of it does not show an abuse of discretion. The judgment of the probate judge was exercised wisely and his decision should not be reversed. Wilbar v. Diamond, 249 Mass. 568. Old Colony Trust Co. v. Spaulding, 250 Mass. 400. Beal v. Davis, 251 Mass. 175. Allen v. Guarente, 253 Mass. 152.

Although it is our duty to examine the evidence and decide the question according to our own judgment, giving due weight to the finding of the judge, a finding made by him, after hearing the witnesses and the offers- of proof made by counsel, is to be carefully regarded and will not be set aside unless plainly wrong. Wilbar v. Diamond, supra. Connell v. Sokoll, 247 Mass. 203. Smith v. Brewster, 247 Mass. 395.

Order affirmed.