Bryant v. Allen

6 N.H. 116 | Superior Court of New Hampshire | 1833

The opinion of the court was delivered by

Richardson, C. J.

The jurisdiction of a Judge of probate is, in general, sole and exclusive ; and his decisions, regularly made, of matters within his jurisdiction, are, unless an appeal is interposed, conclusive against all the world. 1 Coke 138, Kenn’s case; Cro. James, 186, Robertson v. Stallage; Philip’s Evidence, 243—248; Carthew, 225, Jones v. Bow; 1 Salkeld, 290, Blackham’s case; 2 Wilson, 122; Robbins v. Crutchley; 16 Mass. Rep. 433, Dulbin v. Chadburne; 16 Mass. Rep. 112, Newhall v. Sadler; 3 D. & E. 639, Cross v. Salter; 1 Starkie’s Ev. 231—236; 2 Strange, 961, Dacosta v. Villa Real; 1 Gallison, 622, Spencer v. Spencer; 9 Pick. 446, Harvard College v. Amory; 1 Levintz, 235, Noel v. Wells; 4 Coke, 29, Bunting v. Lessinwell; Moor, 169; S. C.; 3 D. & E. Allen v. Dundas.

Every person, whose rights are in any way involved ¿a the proceedings of the Judge of probate, has a right to become a party to the proceedings, and to be heard. And the statute of July 2, 1822. regulating appeals from decisions of Judges of probate, enacts, that any person, or party aggrieved by any decree, sentence, appointment, order, grant, or denial of any Judge of probate, which, if not appealed from might conclude the interest of such person or party, may appeal therefrom to the superior court.

Jfo doubt is entertained that every person, whose rights may be affected by the decree, may be considered as so aggrieved as fo entitle him to appeal

In this case a balance in favor of the administrator, to the amount of $201,24, was allowed by the decree from which this appeal was taken. There is no personal estate, and this balance can be satisfied in no other way than by a sale of the real estate.

If this appeal shall be dismissed, a sale of the real estate, to raise a sum equal to the said balance, may be authorized hy, the Judge of probate, and the land which the appellant holds, be sold for that purpose. Yet there ⅛ no way in which the merits of this decree can be examined, unless it can be done on this appeal. If this decree is permitted to stand, the appellant will be forever concluded by it.

We are of opinion that he is entitled to prosecute the appeal, and that the motion to dismiss it must he overruled.