Eastman v. Barnes , 62 N.H. 630 ( 1883 )

The right of appeal from the decree of the judge of probate accepting the report of the committee of partition being expressly given by statute (G.L., c. 207, s. 1), the motion to dismiss the appeal only raises the question of the sufficiency of the reasons assigned, which must show error in the decree sufficient to entitle the appellant to a reversal. Waldron v. Woodman, 58 N.H. 15.

Whether or not the objections set forth in this appeal are founded in fact is not for us to determine: the only question here is, whether, if proved, they would entitle the appellant to a reversal of the decree. To have this effect, it is not sufficient to allege that the committee erred in their finding of facts so that the division made by them is unequal or unjust, or unsuitable or inconvenient: fraud or its equivalent must be charged. Doughty v. Little, 61 N.H. 365, 368, 369. Their proceedings, being regular, cannot be set aside unless they "were influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake." Fuller v. Bailey, 58 N.H. 71; Free v. Buckingham, 59 N.H. 219.

Applying this rule to the reasons assigned by the appellant, we think the appeal comes within it. While fraud is not specifically charged against the committee, partiality and plain mistakes are charged against them, which resulted in injustice to the appellant, and which, if proved, entitle her to have the report set aside.

The facts will be found at the trial term.

Motion denied.

All concurred.