Summary
In Beaudoin v. Couture, 98 N.H. 272, the attorney relied upon a custom of the county for the register of probate to enter the appeal, which he failed to do for some undisclosed reason.
Summary of this case from Naum v. NaumOpinion
No. 4207.
Decided July 1, 1953.
The allowance of a late probate appeal entry by the Superior Court (R. L., c. 365, s. 7) was justified where the appellants reasonably relied upon the practice in the county of entry being made by the register of probate and all parties had proceeded on the assumption that the appeal, duly claimed in the probate court, had been filed in the Superior Court.
PROBATE APPEAL, by the heirs-at-law of Fred A. Couture, late of Rochester deceased, from a decree entered on July 12, 1951, allowing the will of the decedent after proof in solemn form. In August, 1951, the appeal of the heirs, by their counsel, was filed in the probate court which ordered notice of the appeal to be given by publication for three successive weeks in the Rochester Observer, a newspaper published in Rochester and by personal service on the executrix. It was further ordered that the appeal be entered in the Superior Court before October 2, 1951. The notice of the appeal was published and a copy of the appeal was sent to the attorney of record for the executrix August 7, 1951. The appellants' counsel was notified in the latter part of August, 1951, that the attorney of record was withdrawing from the case and that the executrix was represented by her present attorneys. In February, March and April of 1952, there were several conferences, and correspondence was exchanged between counsel for the appellants and the executrix. By agreement of counsel a deposition of the scrivener of the will was taken in Florida in March, 1952, to be used "in connection with the above entitled action now pending in Strafford County Superior Court at the request of the estate."
Subsequently in June, 1952, it was discovered by counsel for the executrix that return of publication had not been actually made to the probate court and that the appeal had not been entered in the Superior Court. On June 6, 1952, the executrix filed in the Superior Court a petition for failure to prosecute under R. L., c. 365, s. 6. On June 27, 1952, appellants filed a petition for late entry of the appeal as of the October term, 1951, and the right to prosecute their appeal from the allowance of the will of Fred A. Couture. R. L., c. 365, s. 7. That petition contained the following allegations: "That the attorneys for your petitioners have no explanation for the failure of said entry of appeal with return of service other than oversight, mistake and misfortune arising out of the leaving, on September 7, 1951, for active service, of Fred W. Hall, Jr., a member of their law office who had been assigned to care for said appeal, the sale of the Rochester Observer, occurring on September 28, 1951, with its last publication on September 27, 1951, and the active participation of Richard F. Cooper, the junior partner of said law firm, who had personally handled said Couture case in all of its earlier stages, in the preparation and trial of the Fire Cases, so-called in Your Honorable Court, beginning on or about September 21 and ending on or about October 18, and in his belief, with a like belief on the part of Burt R. Cooper, its senior member, that said service had been completed, return made by the other and entry had by the filing of attested copies thereof by the Register of Probate in the office of the Clerk of the Superior Court, as is the practice in this County."
After hearing the Superior Court (Wheeler, C. J.) granted the appellants' petition, denied the executrix' petition and transferred executrix' exceptions to the Court's rulings. It was agreed by counsel that the answer and motion to dismiss on behalf of the executrix would be considered as a demurrer to the appellants' petition.
Burns, Calderwood Bryant and Robert E. Hinchey (Mr. Hinchey orally), for the executrix.
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the appellants.
The various petitions and motions in these proceedings raise the single issue whether the Superior Court was justified in allowing a late entry of the appeal under the circumstances of this case. Probate appeals must be claimed within sixty days. R. L., c. 365, s. 2. This provision of the statute is for the purpose of securing the orderly and expeditious settlement of estates. Indian Head Bank v. Theriault, 96 N.H. 23, 26; Scamman v. Sondheim, 97 N.H. 280, 282. On the other hand, statutory recognition is given to the fact that section 2 may work hardship or misfortune in individual instances and appellants' rights are substantially augmented by R. L., c. 365, ss. 7, 9, which allow an extension of time within two years to appeal if injustice has been done, provided that failure of the appellant to appeal results from "mistake, accident or misfortune, and not from his own neglect."
In Broderick v. Smith, 92 N.H. 33, the appellant relied upon his own judgment with no authority to support it and contrary to the advice of the register of probate. It was held that this did not make out a case for extension of time and the appeal was dismissed. This case was approved and followed in Arnold v. Hay, 95 N.H. 499, where the appellant chose to disregard the order of the probate court because of his unwarranted interpretation of the law as to the need of giving notice. These decisions are not conclusive of the present case. See Grout v. Cole, 57 N.H. 547, and Clough v. Wilton, 79 N.H. 66, which latter case is cited in Larochelle v. Birch, 98 N.H. 190, 192. In the Grout case the probate appeal papers were mislaid without the knowledge of the attorneys, each of whom had reason to suppose that the other had seasonably mailed them to the register of probate. It was held this could be found to be a case of mistake, accident or misfortune within the meaning of the statute allowing an extension of time which is now R. L., c. 365, s. 7. In the case before us the appeal was claimed and the appeal bond filed within sixty days as required by sections 2 and 3 and notice by publication commencing on August 29, 1951, was given in compliance with section 4. Personal notice was given to executrix' counsel but no return of service was filed. Relying on the register of probate to enter the appeal in Superior Court in accordance with the practice in that county, counsel failed to enter the appeal seasonably. Until June, 1952, all counsel proceeded on the assumption that the appeal was duly filed.
All must agree that the late entry of probate appeals is not to be encouraged but this does not preclude the Trial Court from finding a practice of reasonable reliance on others when all counsel proceeded on the assumption that the appeal had been filed. 3 Woerner, American Law of Administration (3rd ed.) s. 546. It is clear that the statute confers discretion on the Trial Court to decide these matters on the basis of particular facts involved. Indian Head Bank v. Theriault, 96 N.H. 23, 27. While we cannot say that the order was required as a matter of law, we can say that it was not an abuse of discretion on the part of the Trial Court under the circumstances of this case.
Exceptions overruled.
All concurred.