Summary
holding that perfection of an appeal under statute requiring "person appealing shall give bond" mandates filing of appeal bond within time prescribed for appeal
Summary of this case from Mary A. O. v. John J. OOpinion
No. 4201.
Decided May 5, 1953.
The sixty-day period within which a probate appeal may be filed (R. L., c. 365, s. 2) is exclusive of the date the decision is made by the probate court. The fact that both the probate appeal and bond bore the date of a legal holiday did not invalidate them since they became effective when duly filed on the following day. A probate appeal bond executed by a surety company as the sole surety thereon is sufficient compliance with the statute (R. L., c. 365, s. 3) requiring an appellant from a decree of the judge of probate to give bond "with sufficient sureties."
PROBATE APPEAL, by heirs at law of Gilbert V. Wentworth, late of Rochester deceased, from a decree entered on February 29, 1952, allowing the will of the decedent after proof in solemn form. On April 29, 1952, the appeal of the heirs, by their counsel, was filed in the probate court. An appeal bond executed by the appellant Raymond C. Pike as principal and a surety company as surety, was filed with the appeal. Both the appeal and the bond were dated April 28, 1952, which was Fast Day, a legal holiday. Laws 1949, c. 270.
Notice of the appeal was duly served upon the executors, and the appeal entered in the Superior Court. The executors appeared specially and moved to dismiss the appeal because dated April 28, 1952, a legal holiday, and because the appellants "did not seasonably or within the time prescribed by statute perfect their appeal." To the denial of this motion the executors seasonably excepted. All questions of law presented by the exception were reserved and transferred by Wheeler, C. J.
McCabe Fisher and Paul B. Urion (Mr. Urion orally), for the executors.
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the appellants.
The timeliness of the appeal is to be determined by the date of filing of the appeal rather than the date of execution. The applicable statute requires that the appeal "be claimed within sixty days from the time of making such decision, and not after, in writing, signed by the party appealing or his attorney . . . ." R. L., c. 365, s. 2. The executors contend that this requirement was not met. In support of their contention they urged that R. L., c. 7, s. 34, providing in part that: "When time is to be reckoned from . . . the time of an act done . . . the day when such act is done shall not be included in the computation," should not be applied, because "such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the . . . statute" construed. R. L., c. 7, s. 1.
In Clough v. Wilton, 79 N.H. 66, the probate appeal statute was construed, and the rule established by what is now R. L., c. 7, s. 34, applied. By this rule, the day of "making such decision" was not counted, and it was held that the Legislature could not have intended that the day of filing the appeal should likewise be excluded. The appeal then before the court was accordingly held to have been filed too late.
Since that decision the statutes involved have twice been reenacted without change. We see no present doubt concerning the applicability of R. L., c. 7, s. 34. The appeal was seasonably filed.
R. L., c. 365, s. 3, requires that the "person appealing shall give bond" conditioned as there provided. Only one of the four appellants, namely, Raymond C. Pike, has complied. Perfection of the appeal requires that the bond be filed within the time limited for the appeal. Broderick v. Smith, 92 N.H. 33. The fact that the appeal and the bond bore the date of a legal holiday did not invalidate them (see 40 C. J. S., Holidays, s. 5; cf. R. L., c. 348, s. 11), particularly since they became effective when filed, on the following day. Cf. Restatement, Contracts, s. 538, comment a; Lawrence v. Farwell, 86 N.H. 59, 62, and cases cited. The bond was sufficient although executed by a single surety (Dane v. Dane, 67 N.H. 552) and it was seasonably filed. As to the appeal of Raymond C. Pike the executors' motion was properly denied.
The remaining appellants seasonably claimed their appeal, but failed to file a bond or bonds as required by R. L., c. 365, s. 3, supra. Since we understand from the statement of counsel for the executors made at the arguments that they waive their exceptions as to these appellants if the appeal was seasonably filed and the bond met the requirements of the statute as to Pike's appeal, the order is
Exception overruled.
All concurred.