Sheppard v. Olney , 271 Mass. 424 ( 1930 )

Rugg, C.J.

This is an appeal from an order denying a motion to frame issues for trial by jury touching the execution of a will. The motion was heard upon oral statements of expected evidence presented by the proponent and the contestant, and no witnesses testified. Thus it appeared that two attending physicians would testify that at the,time of the execution of the alleged will the deceased was a woman between eighty-six and eighty-seven years of age, in a debilitated nervous and physical condition, and had been confined to her bed by exhaustion and congestion of the lungs; that she was suffering from a marked degree of arteriosclerosis including a hardening of the arteries of the brain, and had been for several years previous to the making of the alleged will afflicted with a form of senile dementia and increasing mental deterioration. Their testimony save as to matters of opinion would be supported by that of a nurse and others. Numerous definite facts were specified, the natural effect of which, if believed, would indicate want of testamentary capacity. It is not necessary to narrate these in detail. They tend to show lack of comprehension of her correct relations to living kindred and friends and perhaps also of her property. The deceased had also been for many years under conservatorship. There is nothing in the record indicating that the proponent contended that the attending physicians and others would not testify in substantial accordance with the statements made of expected proof.

It is manifest in view of these statements and especially of the anticipated testimony of the attending physicians of the deceased as to observed facts and opinions that a real question proper for judicial inquiry was presented, and that the contest was not unfounded and did not rest on the disappointment or anger of a dissatisfied party in interest. A genuine question of fact supported by evidence of a substantial nature is shown on this record. In such instances an issue ought to be framed for trial by jury. The question to be decided by the probate judge is not whether he thinks that the controversy can be quite as well decided by a judge as by a jury but whether an honest and genuine and doubtful question of fact is presented. The rule stated in Fuller v. Sylvia, 240 Mass. 49, has never, been modified or impaired and is the guide in deciding questions of this nature. Clark v. McNeil, 246 Mass. 250, 254-256. Smith v. Brewster, 247 Mass. 395. Gifford v. Patten, 265 Mass. 362. Swift v. Charest, 268 Mass. 47. New England Trust Co. v. Folsom, 268 Mass. 342.

There is nothing in the record indicating a doubtful question of fact whether the will was executed according to law or whether it was procured through the fraud or undue influence of any person. The first and third issues set forth in the motion were properly denied, but the order denying the second issue as to the soundness of mind of the deceased was erroneous. As to that issue the order is reversed.

Ordered accordingly.