This case comes before us on an exception taken "by the respondents to the refusal of the Land Court to allow an issue of fact presented to it by them on their appeal from a decision in favor of the petitioner.
The facts found by the judge of the Land Court were as follows: In 1854, one Michael Malady married a second time. The name of his second wife was Ellen Roach. He bought with his own funds one of the tracts of land here in question in 1866, another in 1870, another in 1876, and the fourth in 1877. The first, second and fourth were conveyed by the vendor to Ellen who was described in the deed as wife of Michael. The third was conveyed by the vendor to Michael and was by him conveyed in 1883 to his wife Ellen through a third person. Michael died intestate in 1897. Subsequently the second wife died, also intestate, and her heirs conveyed the four tracts here in question to the petitioner, who took with notice. The respondents are a daughter and the daughter of a deceased daughter of Michael by his first wife. Their contention in the Land Court was that the presumption of a gift by Michael to his second wife was rebutted by the evidence introduced by them. The Land Court found that it was not, and ordered a decree for the petitioner.
From this order the respondents took an appeal and presented *523to the Land Court the following issue of fact as the issue which they wished to try on their appeal, namely: “ Whether Ellen J. Malady subsequent to the dates of the conveyances to her, claimed to third persons, and to her husband in the presence of third persons, that she had, by her own earnings, acquired the properties in question.” The judge of the Land Court refused to allow the issue in substance because it was immaterial, and to this the respondents took the exception which is now before us.
By St. 1905, c. 288, all appeals from the Land Court to the Superior Court must be for a jury trial on the facts.
The practice in case of such appeals is regulated by St. 1904, c. 448, amending St. 1902, c. 458, and R. L. c. 128, § 13. Under these acts it is the duty of the judge of the Land Court to frame the issues of fact to be tried, (Knowlton, C. J., in Luce v. Parsons, 192 Mass. 8, 11,) although issues allowed by him may be amended in the Superior Court. Luce v. Parsons, ubi supra.
We are of opinion that the issue tendered by the respondents was immaterial.
The argument of the respondents here is founded on a misapplication of the cases of Persons v. Persons, 10 C. E. Green, 250; and Peterson v. Farnum, 121 Mass. 476. What the respondents ought to have done if they wished to invoke the authority of these cases was to have asked the judge of the Land Court to allow the following as the issue of fact on which this appeal was to be tried in the Superior Court, namely: Was it the intention of Michael to make a gift of the four tracts in question to his second wife?
The facts stated in the issue framed by the respondents would perhaps have been evidence against the petitioner on that issue, but they are not the issue to be tried.
The order made by the Land Court was not in form although it was in substance an order refusing to allow the issue presented by the respondents. It should have been in that form, and we treat it as such an order.
Order disallowing issue presented by the respondents affirmed.