Zabawa v. Otocki

PER CURIAM. This an appeal from an order denying a motion to frame issues for trial by jury as to the execution of an instrument purporting to be the last will of Stanislaw Otocki. The instrument was dated on March 13, 1933, and was executed in a hospital. He died on April 29, 1933, at the age of about sixty-four. The cause of his death was arterio sclerosis and anemia. The hearing on the motion was on statements of counsel. No stenographer was appointed and these statements are not reported. The trial Judge made a report of material facts. He found that nothing was shown on which to found a reasonable hope for a result favorable to the party requesting the framing of issues. It would serve no useful purpose to narrate or summarize the material facts reported. The record is barren of any suggestion of evidence to warrant the framing of issues under settled practice. The governing principles are clear and need not be restated. Fuller v. Sylvia, 240 Mass. 49, 53, 133 N.E. 384; Cook v. Mosher, 243 Mass. 149, 137 N.E. 299; Clark v. McNeil, 246 Mass. 250, 140 N.E. 922; Smith v. Patterson, 286 Mass. 356, 190 N.E. 536. The case at bar is entirely distinguishable from Sheppard v. Olney, 271 Mass. 424, 171 N.E. 447, and Raposa v. Oliveira, 247 Mass. 188, 141 N.E. 870, upon which the contestant relies. Order denying issues affirmed.