17 N.H. 472 | Superior Court of New Hampshire | 1845
The law requires that appeals from decrees or orders of judges of probate be taken within sixty days. But provision is also made that the person aggrieved by the decree, who is prevented from appealing therefrom within the sixty days, through mistake, accident or misfortune, and not through his own neglect, may petition the superior court at any time within two years thereafter, to be allowed an appeal, sotting forth his interest, his reasons for appealing, and the causes of his delay. Rev. Stat., chap. 60, secs. 1, 2 and 7.
By the ninth section it is provided, that “If it appears that the petitioner has not unreasonably neglected to appeal, and that injustice has been done by the decision of the judge of probate, such appeal shall be allowed, heard and tried on such petition.”
It does not appear that the petitioner in this case was prevented through mistake, accident or misfortune from claiming his appeal within sixty days from the decree. No cause for the delay is alleged except his own forgetfulness of facts that were perfectly well known to him, and it is certainly not clear from doubt that any facts were forgotten or misrecolleeted.
Fhst, as to the time when the purchase of the rights of Judith Presbry was made. So far as there is any evidence on that point, it tends to show that it was not completed until the 15th day of January, 1831. Such is the effect of the instrument exhibited by which the annuitant conveyed or released her claim, for it is dated on that
Secondly, as to the sale of the land under the probate license to pay the debts of Joseph Presbry. It can hardly be said that he was prevented by any cause from appealing from a decree which was founded upon his own representations, and in exact accordance with them. Besides, there is no evidence that the land sold was land of which the widow was dowable.
But by the mistake, accident or misfortune mentioned by the statute, cannot be intended the forgetfulness of the party to avail himself of, facts within his own knowledge. It would be impossible to assign a limit between the misfortune for which the law makes provision, and the neglect which it expressly excludes from its benefits, if forgetfulness, extending throughout the whole period of the preparation and the hearing of the cause, and through the sixty days following, could not fairly be called neglect.
But the petitioner not only fails to establish a case of misfortune, accident or mistake, but to show that injustice has been done by the decree.
As has been suggested, it seems more probable, from the evidence, that the purchase from the annuitant was subsequent to the appointment, than otherwise, and there is no proof that the lands sold for debts of John Presbry were subject to dower of his widow.
Petition dismissed.
