
    Thomas F. Gallagher vs. Ellen Cullinan & others.
    Worcester.
    September 23, 1935.
    October 30, 1935.
    Present: Rugg, C.J., Crosby, Pierce, Field, & Lummus, JJ.
    
      Probate Court, Jury issues.
    Statement by Rugg, C.J., respecting jury issues in contested will cases.
    Petition, filed in the Probate Court for the county of Worcester on January 9, 1935, for proof of the will of Mary A. Sullivan, late of Fitchburg.
    A motion for jury issues by the respondent Ellen Cullinan was heard by F. H. Chamberlain, J., and denied. That respondent appealed.
    
      F. J. Roche & C. H. McGlue, for the respondent Cullinan, submitted a brief.
    
      J. H. Walsh, Jr., for the petitioner.
   Rugg, C.J.

This is an appeal from an order denying a motion to frame issues for trial by jury concerning the execution of a will. The motion was heard on oral statements of evidence anticipated to be available presented by the attorneys for the parties. Statements in opposition to the motion as well as in its support are to be considered. Terry v. King, 286 Mass. 598. The question is whether on these statements there appears to be a real issue of fact to be tried, supported by evidence of a substantial nature. Fuller v. Sylvia, 240 Mass. 49, 53. The decision of the probate judge adverse to the motion is entitled to weight even though the record discloses everything which was before him. An element of discretion is vested in him which will be given weight on appeal. Clark v. McNeil, 246 Mass. 250, 255. Bemis v. Andrews, 280 Mass. 409. The governing principles of law are settled and have been reiterated frequently. They need not be repeated. Smith v. Patterson, 286 Mass. 356, and cases collected. Sheppard v. Olney, 271 Mass. 424. A recital of expected testimony on one side and the other would add nothing to the jurisprudence of the Commonwealth. Ecklund v. Ecklund, 288 Mass. 517. A careful reading of the record convinces us that the denial of the motion was right. The case falls within the class illustrated by McIntosh v. McIntosh, 263 Mass. 315, Swift v. Charest, 268 Mass. 47, Harvey v. Knapp, 270 Mass. 354, Anderson v. Jackson, 286 Mass. 146, Angley v. Brophy, 290 Mass. 51, and First National Bank of Boston v. Francis, 290 Mass. 49. It is distinguishable from cases like Daly v. Hussey, 275 Mass. 28, Smith v. Brewster, 247 Mass. 395, New England Trust Co. v. Folsom, 268 Mass. 342, and Crosby v. Tracy, 290 Mass. 46.

Order denying issues affirmed.  