Buffum v. Sparhawk

20 N.H. 81 | Superior Court of New Hampshire | 1849

Gilchrist, O. J.

The Revised Statutes (ch. 170) limit the time for taking an appeal from a probate decree, to sixty days from the making of the decree.

It is, however, provided (sec. 7) that “any person aggrieved by any such, decision, &c., who was prevented from appealing therefrom within said sixty days, through mistake, accident or misfortune, and not from his own neglect, may petition said Superior Court, at any time within two years thereafter, to he allowed an appeal, setting forth his interest, his reasons for appealing, and the causes of his delay.”

“ Sec. 9. If it shall appear that the petitioner has not unreasonably neglected to appeal, and that injustice has been done by the decision of the judge of prohate, such appeal shall be allowed, heard and tried on such petition.”

It is plain, from the words of the statute, that in order to sustain their petition the parties preferring it must show, in the first place, that they have been prevented from taking their appeal within the sixty days through mistake, accident or misfortune, and not from their own neglect; that they have not unreasonably neglected to appeal; and that injustice has been done them by the decision of the judge.

If it be conceded that there has been no neglect on the part of the petitioners, and that they have been prevented through misfortune from taking their appeal in season, it remains for them to show the court here that injustice has been done by the decree of the judge of probate.

As to this, nothing appears but that the real estate of the deceased was appraised at $2,186.50, and the personal at $2,147.42; that he died insolvent, and that the petitioners were creditors. There is nothing in these facts from which the court can infer that the allowance of five hundred dollars to the widow, for her present support, was excessive or unreasonable.

If the cause had come regularly before us in the form of an appeal, as in the case of Washburn v. Washburn, 10 Pick. 374, making it our duty to revise the case upon the evidence produced, these facts might not, perhaps, afford sufficient ground for affirming the decree. But it is a very different thing for ns to decide that the decree was wrong and ought to be reversed; and we have no hesitation in saying that the case made by the petitioners does not furnish ground for such a decision.

These allowances are made by courts of probate in the exercise of a sound discretion, and in view of the condition of the widow as to health, age, habits, the number and age of. the children immediately dependent upon her, as well as the amount of the estate, and of her dower and distributive, share therein. Many of these circumstances were particularly adverted to in the case of Washburn v. Washburn, the decision of which proceeded upon statutes similar to ours.

The statute (ch. 165, sec. 1) authorizes the judge of probate to make a reasonable allowance to the widow out of the personal estate, for her present support; a part or the whole of which may, at the discretion of the judge, be accounted for as part of her distributive share.

Provision is thus made for charging the allowance to the account of the widow’s distributive share, if, upon the settlement of the estate, such a course should seem equitable and just towards the other parties entitled to distribution. But no provision whatever is found for reclaiming such allowance actually paid over, and after the lapse of that period for which it was particularly designed as a relief.

"We think it clear, therefore, that the petitioners have failed to show that injustice has been done by the decree, and that it ought tobe reversed; consequently we are of the opinion that the petition should be dismissed.

Petition dismissed.