Coram v. Connell

103 N.H. 26 (1960)

ELINOR H. CORAM & a.
v.
MARY E. CONNELL & a.

No. 4855.

Supreme Court of New Hampshire.

Argued September 8, 1960. Decided October 4, 1960.

Paul B. Urion (by brief and orally), for the plaintiffs.

Beamis & Davis (Mr. Davis orally), for the defendants.

LAMPRON, J.

A petition for leave to appeal will be denied under RSA 567:9 if it appears that the decree of the probate court must be affirmed. Rice's Petition, 58 N. H. 200. In such a situation it cannot be found "that injustice has been done by the decision of the judge" of probate as required by said section 9. Broderick v. Smith, 92 N. H. 33, 37.

It has been settled law in this jurisdiction for many years that under RSA 561:1, 6, an aunt takes to the exclusion of cousins. Dodge v. Lewis, 71 N. H. 324; Green v. Bancroft, 75 N. H. 204; Hoyt's, Probate Practice, 241; anno. 54 A. L. R. 2d 1009, 1042. The decree of distribution made by the probate court is in conformity with this established principle and the denial of plaintiffs' petition by the Superior Court was proper. Broderick v. Smith, supra.

In view of the result reached it is unnecessary to pass on the propriety of the ruling made by the probate court that certification of the proposed question of law pertaining to this issue could not be made under RSA 547:30 after its decree of distribution was entered.

Exception overruled.

All concurred.