Stewart v. Forrest , 356 Mass. 728 ( 1969 )

The contestant appeals from an order of the probate judge denying a motion to frame for trial by jury the issue whether the execution of the alleged will was procured by the fraud or undue influence of the proponent. The judge received statements of counsel in lieu of evidence. We decide the case ourselves giving due weight to the decision of the j udge. Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51, 56. Applying frequently stated principles, we are of opinion as was the judge that the expected evidence did not raise a genuine and doubtful question of fact on the issue of fraud or undue influence. Goddard v. Dupree, 322 Mass. 247, 250. Spilios v. Bouras, 337 Mass. 176, 177. Tarricone v. Cummings, 340 Mass. 758.

John F. Donohoe for the contestant. John L. McDonough, Jr., for the proponent.

Order denying motion for jury issue affirmed.