
    John I. Preston & another vs. Harry F. Peck.
    Middlesex.
    March 6, 1931. —
    June 1, 1931.
    Present: Rugg, C.J., Cbosby, Pierce, Wait, & Sanderson, JJ.
    
      Probate Court, Jury issues.
    A petition in a probate court “to reopen for hearing” a petition or motion for the framing of jury issues in a contest as to the proof of a will after such motion has been voluntarily and formally waived, and after a hearing on the merits of the contest has been had, presents no question of right, although, owing to the sustaining of exceptions relating to the conduct of the hearing on the merits, another such hearing was required.
    Petition, filed in the Probate Court for the county of Middlesex on June 17, 1929, for proof of the will of Nannie E. Wyman, late of Wakefield.
    Exceptions, saved by the respondent at the hearing on the petition by Campbell, J., were sustained by this court in a decision reported in 271 Mass. 159. Thereafter, on May 9, 1930, the respondent filed the motion described in the opinion, which was heard and denied by Beane, J. The respondent appealed.
    
      
      J. J. Donahue, (J. J. Butler with him,) for the respondent.
    
      A. H. Garcelon, (/. I. Preston with him,) for the petitioners.
   Pierce, J.

This is an appeal from an order of the Probate Court for the county of Middlesex dismissing the contestant’s petition “to reopen for hearing the petition for jury issues” in the matter of the allowance of the will of Nannie E. Wyman, deceased.

The material facts are as follows: The decedent died in June, 1929. An instrument purporting to be her will was presented for allowance in the Middlesex Probate Court. A motion- for jury issues was duly filed by the respondent, and in October, 1929, the issues were waived. After a hearing the will was allowed by a judge of the Probate Court. An appeal was taken to this court, and the decree reversed for errors incident to the reception of testimony. Preston v. Peck, 271 Mass. 159,

Whatever the original right to have issues framed may have been, as to which see Fuller v. Sylvia, 240 Mass. 49, it is plain a motion or petition for a rehearing to frame issues after such motion has been voluntarily and formally waived, and after a hearing on the merits has been had, presents no question of right.

Order dismissing petition affirmed.  