Mayhew v. Chase

Crosby, J.

The petitioner is named as executor in an instrument, purporting to be the will of Benjamin Chester Chase, which was presented for allowance to the Probate Court for the county of Dukes County. The appellee, who is a brother of Benjamin Chester Chase, filed an appearance against the allowance of the alleged will and seasonably moved for the framing of four issues to be tried by a jury. From the allowance of these issues the petitioner appealed. The petitioner waives his appeal so far as it relates to the third and fourth issues. The case is before this court upon a report by the judge of probate. The sole question for our determination is whether the judge erred in allowing the first and second issues, which are as follows: (1) “Was the instrument propounded for probate as the last will of Benjamin C. Chase executed according to law?” and (2) “Did the said Benjamin C. Chase execute said instrument with the understanding and purpose that it should be his last will and testament?”

At the hearing in the Probate Court upon the motion for the allowance of issues, the respondent Chase filed a paper entitled “Outline of Evidence of Respondent in Support of Motion to Frame Issues for Jury,” and offered evidence to prove certain facts which are set forth in the paper so filed. There is nothing in the statement of facts above referred to which relates to or raises any question respecting the execution of the alleged will, nor was any other evidence submitted to the court. As there was no offer of proof tending to show that the alleged will was not executed by the decedent, there was no valid reason for the submission of the first and second issues to a jury. It was said in Fuller v. Sylvia, 240 Mass. 49, at page 54, “As matter of experience it has been found that cases are comparatively rare where there is an actual controversy of fact as to the execution of the instrument according to the forms of law, and this issue has not frequently been framed.”

No issue should be framed for a jury in a case involving the validity of a will unless there is a real dispute respecting a material fact. As the offer of proof before the judge did not include an offer to prove that the instrument was not duly executed, the first and second issues should not have been framed. It follows that the decree, so far as it allowed these issues, is reversed.

Ordered accordingly.