Opinion
No. 4855.
Argued September 8, 1960.
Decided October 4, 1960.
1. A petition for leave to appeal from the decision of a probate court under RSA 567:9 will be denied where the probate decree must be affirmed.
2. Under the descent and distribution statutes (RSA 561:1, 6) an aunt takes to the exclusion of cousins.
PETITION, under RSA 567:7 for the right to appeal from a decree of distribution made by the judge of probate in the estate of Wilfred B. Sykes, sometimes known as Freddie Sykes, who died intestate and unmarried, at Dover on May 26, 1956.
His father and mother predeceased him. He was survived by an aunt, a sister of his father, Mary E. Connell, on whose petition Elena L. Moore was appointed administratrix of his estate on June 6, 1956. The plaintiffs are cousins of the deceased. Some are children of a deceased brother of his mother and others are children of a deceased sister of his mother.
October 21, 1957, the judge of probate decreed that the balance of $14,463.97 in the hands of the administratrix on her final account be distributed to said aunt, Mary E. Connell, as the only heir-at-law of the estate.
December 6, 1957, the plaintiffs filed a petition asking the judge of probate to certify to this court under the provisions of RSA 547:30 the following question of law: "Does the aunt take to the exclusion of cousins?" This petition was taken under advisement by the probate court on December 14 and on January 7, 1958, ruled that certification could not be made after a decree by said court. The time limit for appeal under RSA 567:2 had then expired.
February 25, 1958, plaintiffs filed their petition in Superior Court for right to appeal under RSA 567:7. They alleged therein that by accident and through no fault of their own they were prevented from appealing within the time provided by RSA 567:2 the decree of distribution made October 21, 1957. Also that they are aggrieved by the ruling of the probate court made January 7, 1958, that certification could not be made under RSA 547:30 and that there is only one question of law to be determined which can be transferred to this court without ruling.
This petition was denied by Leahy, C.J. and plaintiffs' exception thereto was reserved and transferred.
Paul B. Urion (by brief and orally), for the plaintiffs.
Beamis Davis (Mr. Davis orally), for the defendants.
A petition for leave to appeal will be denied under RSA 567:9 if it appears that the decree of the probate court must be affirmed. Rice's Petition, 58 N.H. 200. In such a situation it cannot be found "that injustice has been done by the decision of the judge" of probate as required by said section 9. Broderick v. Smith, 92 N.H. 33, 37.
It has been settled law in this jurisdiction for many years that under RSA 561:1, 6, an aunt takes to the exclusion of cousins. Dodge v. Lewis, 71 N.H. 324; Green v. Bancroft, 75 N.H. 204; Hoyt's, Probate Practice, 241; anno. 54 A.L.R. 2d 1009, 1042. The decree of distribution made by the probate court is in conformity with this established principle and the denial of plaintiffs' petition by the Superior Court was proper. Broderick v. Smith, supra.
In view of the result reached it is unnecessary to pass on the propriety of the ruling made by the probate court that certification of the proposed question of law pertaining to this issue could not be made under RSA 547:30 after its decree of distribution was entered.
Exception overruled.
All concurred.