
    Mary M. McCormack vs. Helen E. Quilty & others.
    Middlesex.
    February 7, 1929.
    February 28, 1929.
    Present: Rugg, C.J., Pierce, Wait, & Field, JJ.
    
      Probate Court, Jury issues.
    Reaffirmance of the principles of law governing action by probate courts upon motions for the framing of issues for trial by jury respecting the validity of wills, and appeals therefrom.
    Petition, filed in the Probate Court for the county of Middlesex on September 1, 1928, for the probate of the will of Mary A. Burke, late of Cambridge.
    The respondents, next of kin of the alleged testatrix, moved for the framing of issues to be tried by a jury. The motion was heard by Harris, J., a stenographer having been appointed under G. L. c. 215, § 18. The motion was denied. The respondents appealed.
    
      J. A. Canavan, for the respondents.
    
      J. P. Wright, for the petitioner.
   PuUGG, C.J.

This is an appeal from an order denying a

motion for the framing of issues to a jury in a will case. The governing principles of law touching that matter have been recently formulated with care and need not be repeated. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, 243 Mass. 149. Clark v. McNeil, 246 Mass. 250. Burroughs v. White, 246 Mass. 258.

One of the requested issues was whether the decedent was of sound mind at the time of the execution of the alleged will. The principles of law as to what constitutes soundness of mind in this connection are established. It would be superfluous to reiterate them. Whitney v. Twombly, 136 Mass. 145. Becker v. Becker, 238 Mass. 362. Smith v. Brewster, 247 Mass. 395, 399. The other issue sought was whether the instrument offered for probate as the will of the decedent was procured to be executed by the fraud or undue influence of named persons. The principles of law as to what constitutes undue influence in this connection are well settled. It is not necessary to restate them. Neill v. Brackett, 234 Mass. 367, and cases there collected. Raposa v. Oliveira, 247 Mass. 188. Allen v. Guarente, 253 Mass. 152.

The motion was decided upon statements by counsel as to what it was expected the evidence would be. There is no occasion to summarize those statements. A careful reading of them convinces us that there was no error in the refusal to frame issues. Old Colony Trust Co. v. Pepper, 248 Mass. 263. Wilbar v. Diamond, 249 Mass. 568, 573, 574. Old Colony Trust Co. v. Spaulding, 250 Mass. 400. Johnson v. Jenks, 253 Mass. 25. Johnson v. Talbot, 255 Mass. 155,158. Dwyer v. Ferren, 255 Mass. 261. Taylor v. Creeley, 257 Mass. 21. Johnson v. Harris, 258 Mass. 201. Sullivan v. Brabason, 264 Mass. 276, 284. Gifford v. Patten, 265 Mass. 362.

Order denying issues to jury affirmed.  