Lead Opinion

FROM COOS PROBATE COURT. *Page 548 I think that under the decisions in this state this petition should be granted. Matthews v. Fogg, 35 N.H. 289; Parker's Petition, 15 N.H. 24; Insurance Co. v. Lisbon Man'f'g Co., 22 N.H. 170; Tilton v. Tilton,35 N.H. 430; French's Petition, 17 N.H. 472; Holt v. Smart, 46 N.H. 9. This case can hardly be distinguished from Matthews v. Fogg, where the accident relied upon was the mistake or neglect of the express agent to file the papers in the probate office until the day after the sixty days limited by law for taking the appeal, although seasonably delivered to him for transmission to the register.

The evidence in this case satisfies me that each of the counsel employed by the petitioners was honestly mistaken in supposing the papers had been seasonably forwarded, and that they might reasonably so suppose. It appears to be such a mistake or accident as under our decisions the statute was intended to relieve against, and the evidence taken shows that injustice may be done the creditors unless they can have the account of the administratrix reexamined in this court.

Concurrence Opinion

The authorities cited by my brother Smith clearly show that this is one of the cases of accident, mistake, and misfortune which the statute is designed to remedy. It is also apparent from the evidence that injustice has happened by means of the decree from which the appeal is sought.

Dissenting Opinion

I am unable to concur in the result reached by my brethren, for the reason that the evidence laid before us leaves the impression on my mind that the failure seasonably to file the appeal and bond in the probate office was the result of negligence on the part of the petitioners' counsel.

Appeal allowed. *Page 549