Lillie v. Lillie's Estate

The opinion of the court was delivered by Taet, J. This case was a petition to the County Court for leave to enter an appeal from the Probate Court, brought under sec. 1426, R. L. No application for an appeal was filed. The petitioner filed a bond for the appeal, and understood that the judge of the Probate Court was to make all other necessary papers, and his counsel so understood it; but the judge did not understand that he was to do anything relative to the matter. 'The court below found that the petitioner had been prevented from taking an appeal by mistake, and granted him leave to [715] enter it. The section of the statute above referred to gives the court power to grant such leave in its discretion in all cases where the petitioner has been prevented from taking or entering his appeal by fraud, accident, or mistake. There was evidence before the County Court that the failure to take the appeal was by mistake; and under such circumstances the action of that court will not be revised here. We think that the facts found by the court below brought the ease directly within the statute, and, where such is the fact, the discretion exercised by the court will not be disturbed. Burton v. Barlow's Est., 55 Vt. 434. Judgment affirmed and cause remanded.