Berry v. Leonard , 273 Mass. 409 ( 1930 )

Rugg, C.J.

This is an appeal from an order denying a motion to frame issues to be tried by a jury respecting the execution of an instrument offered for probate as the last will and testament of a deceased resident of Somerville. The first issue as to the due execution of the instrument has been waived. The motion was heard upon statements by respective counsel as to the nature and substance of evidence expected to be proffered. Two issues are now pressed, one as to the soundness of mind of the alleged testatrix, and the other as to the procurement of the execution of the alleged will through the fraud or undue influence of a named individual. It would serve no useful purpose to narrate at length or to summarize the statements of expected evidence. The principles of law governing the disposition of such motions have been expounded at length in numerous recent decisions. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, 243 Mass. 149. Clark v. McNeil, 246 Mass. 250. Burroughs v. White, 246 Mass. 258.

The denial of the issue as to unsoundness of mind was quite warranted. There was no medical evidence stated to support that contention, and the specific acts set forth are not persuasive. The case falls within numerous adjudications. Johnson v. Talbot, 255 Mass. 155. Taylor v. Creeley, 257 Mass. 21. Wilbar v. Diamond, 249 Mass. 568, 573. Gifford v. Patten, 265 Mass. 362. It is easily distinguishable from cases like Smith v. Brewster, 247 Mass. 395; Sheppard v. Olney, 271 Mass. 424, and New England Trust Co. v. Folsom, 268 Mass. 342. The denial of the issue as to undue influence stands upon the same footing. The principles as to what constitutes undue influence are established. Neill v. Brackett, 234 Mass. 367. The case at bar on this point falls within the authority of cases like Cummins v. McCawley, 241 Mass. 427; McCormack v. Quilty, 266 Mass. 402; Swift v. Charest, 268 Mass. 47; Harvey v. Knapp, 270 Mass. 354.

Order denying issues affirmed.