Opinion
December 10, 1953.
Raphael A.A. Comparone, ( Thomas V. Sullivan with him,) for the contestant.
No argument nor brief for the proponent.
Order denying jury issues affirmed. Order denying continuance affirmed. One of these appeals is from an order of a judge of the Probate Court denying jury issues in connection with the probate of the will of Antonio Deluca. The only issue seriously urged was undue influence on the part of Raymond G. Mowat and his wife, Elsie P. Mowat, who were the only beneficiaries under said will. This issue was submitted to the judge upon oral statements of counsel for the proponent and counsel for the contestant, together with written statements of certain persons reciting evidence which counsel for the contestant expected them to give in the event of a jury trial. All these statements appear in the record. Viewing the whole record and giving the decision of the judge the weight to which it is entitled, we think that the expected evidence did not require the framing of an issue upon undue influence. Fuller v. Sylvia, 240 Mass. 49. Hannon v. Gorman, 296 Mass. 437. See Laws v. Aschenbeck, 326 Mass. 7. The other appeal was from an order of the judge denying a motion for a continuance of the hearing on the motion to frame jury issues until after a hearing upon a petition for discovery had been had. Little citation of authority is necessary to demonstrate that a motion for a continuance rests entirely within the discretion of the judge unless abuse of discretion is shown. No abuse of discretion is shown here. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5, 16.