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HARRY F. BURROUGHS vs. WILLIAM O. WHITE.

Probate Court, Framing of jury issues.

On an appeal from a decree of the Probate Court denying a motion for jury issues, entered after a hearing where no testimony was presented and only statements of counsel as to the evidence which they expected to introduce were considered by the judge, the decree was affirmed, although the question was a close one and one on which judges well might differ. Following Clark v. McNeil, ante, 250.

RUGG, C.J.

This is an appeal from an order by a probate judge denying a motion to frame issues to a jury on a petition for the allowance of a will. It was heard and decided and comes before us on appeal on statement by counsel for the contestant of expected proof.

The governing principles of law have been stated in the opinion in Clark v. McNeil, ante, 250, just decided, and need not be repeated. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, 243 Mass. 149.

It would serve no useful purpose to narrate the statement of facts. The case is very close. Some of us would have granted the issues. But we all are of opinion, though with hesitation, that the decision of the Probate Court ought not to be reversed.

Order affirmed.

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BURROUGHS v. WHITE
(Sep 14, 1923)