Salach v. Buchowski , 352 Mass. 774 ( 1967 )

In the matter of the alleged will of the late Frank Wo j eiechowicz, two groups of contestants moved to have jury issues framed on (1) execution, (2) testamentary capacity, and (3) fraud and undue influence. The judge allowed an issue to be framed on the third ground, and the proponent appealed. We have examined the statements of expected evidence in the light of the familiar governing principles (see Spilios v. Bouras, 337 Mass. 176, 177, and cases cited) and are of opinion that the decision of the judge ought not to be disturbed. We note that one group of contestants prayed: “3. Was the execution of said alleged will of . . . Frank Wo j eiechowicz procured by the fraud or undue influence of Phyllis Salaeh or arvy of them Vsic], exercised upon the said Frank Wo j eiechowicz f’ (emphasis supplied) . The third prayer in the motion of the other group was the same except that the italicised words were omitted. The decree was: “Motion allowed as to Issue number 3.” This decree might apply to either motion. The issue to be framed ought not to include the italicised words. There was no expected evidence that anyone other than Phyllis Salaeh was charged with exercising undue influence. See Morin v. Morin, 328 Mass. 33.

The decree, as herein limited, is affirmed.