Stevens v. Stevens , 71 N.H. 579 ( 1902 )

The judge of probate has express authority to accept the report of a committee appointed to set off dower and homestead, and implied authority to reject it. P. S., c. 197, s. 3; Harmon v. Haines, 68 N.H. 28, 29, 31. Upon the return of the report it is within his province to determine (1) whether the proceedings of the committee were regular or irregular, and whether in their findings of fact they acted in good faith or otherwise. His decree accepting or rejecting the report is not final; the right of appeal in both cases is given by statute. P. S, c. 200, ss. 1, 2; Eastman v. Barnes, 62 N.H. 630, 631. If he decrees an acceptance of the report, and, upon an appeal assigning correctionable error, it is made to appear that the proceedings of the committee were irregular, or that in their findings of fact they were "influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake," the appellate court may reverse it. If, on the other hand, he decrees that it be rejected, and, upon a proper appeal being taken, it appears that the proceedings were regular and that the committee in their findings of fact were not influenced or mistaken as above stated, the appellate court may likewise reverse the decree. The judge of probate and the appellate court have authority to try the same questions. Harmon v. Haines, supra; Eastman v. Barnes, supra.

The appeal must be in writing, setting forth the reasons of appeal (P. S., c. 200, s. 2), and the appellant is restricted to the matters specified therein. "At his instance, no grievances except such as he has assigned will be considered." Simmons v. Goodell, 63 N.H. 458, 460.

The appellee's motion to dismiss presents the question, whether the appeal states a reason disclosing error in the decree of the probate judge, sufficient to entitle the appellant to have it reversed. Eastman v. Barnes, supra. The purpose of the statute, requiring the appellant to state in his appeal the reasons wherein the probate judge erred in accepting or rejecting the report, is to enable the appellate court to see the ground on which he bases his claim for relief. It is the statement of his cause of complaint. The error assigned in this appeal — the rejection and disallowance of the report — is but a recital of the decree made by the probate judge. It is not the assignment of a reason wherein the decree is erroneous, and presents no ground for an investigation, in the appellate court, of questions over which, upon a proper application, it could entertain jurisdiction. No reason for the appeal being stated, the refusal to grant the motion of the appellee was error; but as it appears that after a trial of the facts in the superior court the appeal was dismissed, that order presents no error of law. No other question is considered.

Case discharged.

All concurred.