WILLIAM SEIFERTH vs. RAEBURN HAY & others.

WILLIAM SEIFERTH vs. RAEBURN HAY & others.

352 Mass. 768

March 31, 1967

This an appeal from a denial by the Probate Court of a motion to frame jury issues on a petition for the allowance of a will. In addition to oral statements made to the judge written offers of proof were presented. The judge made a report of material facts. He found "that there was no genuine or doubtful question of fact" affording a "reasonable hope" for a result favorable to the contestants. "The principles of law applicable to the subject of jury issues are so familiar that they need not be set forth at length. Briefly stated, there must be a genuine and doubtful

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question of fact supported by evidence of such substantial nature as to afford reasonable expectation of a result favorable to the moving party. . . . The scope of an appeal in such cases is similar to an appeal in equity with a report of the evidence. It is our duty to examine the statements of expected evidence and to decide the case in accordance with our own judgment, giving due weight to the decision of the judge." Abbott v. Noel, 337 Mass. 133 , 138. We see no reason for reaching a different conclusion than that of the judge.

Order denying motion for jury issues affirmed.