Mottau v. Mottau

243 Mass. 147

Opinion

Rugg, C.J.

The Probate Court on a petition for the allowance of a will and codicil framed for trial by jury in the Superior Court the issue whether the instruments were procured -to be made by the fraud or undue influence of a person named. The single question presented is whether under such circumstances the petitioners or the contestants had the right to open and to close before the jury.

It has been the unbroken practice in will cases, so far as disclosed in the reported decisions, for the proponent of the will to open and close. Phelps v. Hartwell, 1 Mass. 70. Blaney v. Sargeant, 1 Mass. 335. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 551. The reasons for this are set out in Dorr v. Tremont National Bank, 128 Mass. 349, 358-360, and need not be repeated.

It has been the invariable custom of the justices of this court, so far as memory runs, in exercising nisi prius jurisdiction in the trial by jury of issues in cases like the present, to direct the proponent of the will to open and to close, regardless of the form of the particular issue or issues. The rule has worked well in practical experience. It is desirable that practice be simple and uniform, easily understood and not subject to exceptions which inevitably tend to increase with the lapse of time. We see no sound ground to change the established practice.

Exceptions overruled.