223 Mass. 297 | Mass. | 1916
The petitioners having failed to enter their appeal in this court within thirty days after the entry of the decree in the Probate Court as required by R. L. c. 162, §§ 9, 10, are compelled to rely on § 13, which provides, that “If a person who is aggrieved omits, without default on his part, to claim or prosecute his appeal and it appears that justice requires a revision of the case, the supreme court of probate . . . may, upon his petition and upon terms, allow an appeal to be entered and prosecuted.” Bartlett v. Slater, 183 Mass. 152.
It was said in Capen v. Skinner, 139 Mass. 190, 191, that under Pub. Sts. c. 156, § 9, of which the R. L. c. 162, § 13, is a re-enactment, “A petitioner is required to prove, to the satisfaction of this court, not only that there is no default on his part, but that substantial justice requires a revision of the case.” If the petition is opposed, the petitioner has the burden of proving that the absolute right to claim or prosecute an appeal has been lost through no fault of his own, or the discretionary powers of the court to allow a revision cannot be successfully invoked. Kent v. Dunham, 14Gray,279,281. Briggs v. Barker, 145Mass.287. Daley v. Francis, 153 Mass. 8, 10, 11. Cawley v. Greenwood, 192 Mass. 126.
Upon this question the findings of the single justice
But no notice of appeal had ever been filed in the registry, or notice given to the appellee, or copy of the record procured as required by § 10, and it was not until the time was about to expire
The failure to comply with the statute plainly does not rest on any accident, surprise or mistake which a reasonably diligent and careful man would not be expected to anticipate and guard against. Clark v. Brigham, 22 Pick. 81. Hutchinson v. Gurley, 8 Allen, 23. Boston v. Robbins, 116 Mass. 313, 315. Keene v. White, 136 Mass. 23. And no sufficient excuse for doing away with the steps necessary for taking and perfecting an appeal appears.
But, even if the petitioners are “in default,” we add that, having carefully read the evidence reported, no substantial reason is shown for reversal of the further findings of the single justice exonerating the appellee as trustee from the charge of maladministration, upon which the petition is grounded.
The decree dismissing the petition should be affirmed with costs.
Ordered accordingly.
Carroll, J. The appeal sought to be entered was from a decree of the Probate Court allowing the first account of Mary A. Linehan, the mother of the petitioners, as trustee under the will of her late husband Charles Linehan, late of Cambridge.