Canfield v. Wooster

Hinman, J. The appellees plead in abatement that the appellants before, and at the time when the order appealed from was passed, had notice to appear and object thereto, but that they consented to the order, and a term of the [388] superior court having intervened between the passing of the order and the taking out of the appeal, that they ought to have appealed to that term if they were aggrieved by the order. The court however finds that the appellants had no notice of the time when the order was to be passed, and were not present at its passage, but that they had knowledge of the contents of the will, and that one of them informed the executor that he did not contemplate any opposition to its probate, and the other that he thought there would be no difficulty, and advised the executor to go forward and prove the will, and settle the estate. In the progress of the settlement of the estate the appellants presented claims against it to the commissioners, which were disallowed in part, and then for the first time, they conceived ttíe intention of taking this appeal. And the question is, whether these facts are tantamount to notice, or a waiver of it, or are sufficient to estop the appellants from taking the appeal at the time they did take it. We think they are not. The statute on this subject is very explicit. It provides that all persons aggrieved by a decree of a court of probate, who are of full age and present, or who have legal notice to be present, shall appeal to the next superior court, and not afterwards; and if they have no notice to be present, and are not present, then they shall appeal within eighteen months. Rev. Stab, tit. 4, § 65. It is not necessary in this case to decide what would amount to a waiver of notice, so as to preclude the right of appeal after a term of the superior court had intervened; but it appears to us quite obvious that none of the facts found by the superior court are sufficient for the purpose; and equally obvious that, taken collectively, nothing is added to their effect. There was no express waiver of notice. One of the appellants thought that there would be no difficulty, and the other did not at first contemplate any opposition to the will. Probably neither of them at that time contemplated opposition ; but that is no sufficient reason why they should not have notice. Suppose they had been present when the will was approved, and had both said that they did not contemplate any opposition to it, would it be claimed that this [389] would prevent their appealing to the next superior court ? But if it would not, neither can it dispense with notice so as prevent their appealing within the time prescribed for parties who have no notice and are not present. Of a similar character is the fact that they presented claims against the estate to the commissioners. They then knew that the will had been approved, but this does not at all go to show that they had notice to be present and show cause, if any they had, why it should not be proved and approved. Indeed the finding is express that they had no such notice. It is true in this case that the appellants first conceived the intention of taking this appeal when their claims had been acted upon by the commissioners. But whatever influence this fact ought to have, as a mere matter of fact, in the nature of an admission that they had no ground for taking an appeal, surely it can operate no further than as such an admission. It was very easy for the executor to provide against appeals at a late day, by giving notice to the parties in interest of the time when he proposed to offer the will for probate, and we feel no inclination to give a strained construction to such a statute in order to help him out of a difficulty which he could so easily have guarded against. We advise judgment in favor of the appellants on the plea in abatement. In this opinion the other judges concurred. Judgment for appellants advised.