Holton v. Olcott ( 1879 )

The statute gave Charles D. Holton sixty days within which to take his appeal if he was aggrieved by the decree allowing the executor's account. Gen. St., c. 188, ss. 1, 2.

It does not appear that he was kept from taking an appeal through accident, mistake, or misfortune, and the petition as to him is denied.

Sophia W. Greene did not receive notice, and had no knowledge that the executor was going to settle his account, or of the decree allowing it, within sixty days after the time the decree was made. It appears that she made no arrangement to be notified, and it is claimed that she is in fault on that account, so that she is not entitled to an appeal. The fact that she failed to make arrangements for being notified may be evidence on the question whether she was guilty of unreasonable neglect in not taking her appeal within sixty days, but it is not within the spirit of the statute to hold that this act alone is in law unreasonable neglect. Wilcombs' Petition, 26 N.H. 370; Woodworth v. Wilson, 50 N.H. 220.

The remaining inquiry is, whether it appears that injustice has been done by the decree. Gen. St., c. 188, s. 7. The construction given this provision of the statute is, that if there are important questions at issue, which the petitioner, in good faith, desires and intends to try, and some evidence is offered to sustain the reason for the appeal, the leave to appeal will be granted without deciding the merits of the controversy. Moulton's Petition, 50 N.H. 532; Matthews v. Fogg, 35 N.H. 291. The facts found by the referee fail to make a case that authorizes the court to allow the appeal prayed for.

Petition dismissed.

ALLEN, J., did not sit: the others concurred.