Merrill v. Putnam

Peaslee, J. As the facts are understood, due notice of the proceeding to prove the will in solemn form was given in the first instance so as to bind all but minors and persons out of the state. This is conceded by the plaintiff in his last brief, wherein he recites that the usual notice was given. By that notice Abbie Putnam was made a party to the proceeding in the probate court. She entered a formal appearance when she appealed from the decree. Upon that appeal it was held in the superior court that the proceeding in the probate court was invalid for want of proper proceedings as to minors and non-residents, and the appeal was dismissed. The probate court then proceeded with proof of the will in solemn *391 form. A question arose as to the right to maintain the petition, and the present appeal is from an order on that question. It was error to dismiss the first appeal because certain persons were not properly made parties to the proceeding in the probate court. Adams v. Adams, 64 N. H. 224. The rule is the same as in appeals from laying out highways. Bickford v. Franconia, 73 N. H. 194, and cases cited. It is apparent that the case ought not to be sent back to the probate court. The first appeal should be brought forward upon the docket of the superior court, the order of dismissal should be stricken off, and the case should stand for trial upon its merits. It does not appear whether the defects in the original proceeding have been remedied, but apparently such is the fact. If further action to that end is necessary or advisable, it can be taken in the superior court. It is now urged that the original petition was fatally defective because the widow was not “interested” in the will. The grounds for this contention are not disclosed, and the fact that the will contained provisions for the benefit of the wife shows that she could claim an interest under it. This was sufficient to give her a standing in the probate court. Case discharged. All concurred.