Opinion
Decided August, 1877.
When one has been prevented from appealing from a decree of the probate court, through mistake, accident, or misfortune, his petition for leave to appeal will be denied, if it appears that the decree of the probate court must be affirmed.
PETITION, for leave to appeal from a decree of the probate court removing the petitioner from the office of executor. The petitioner claimed that he was prevented from appealing within the prescribed time, through mistake, accident, and misfortune. In pursuance of a special order, made with consent of the parties, a referee found the facts upon which the appeal, if granted, would be decided, as well as the facts of the alleged mistake, accident, and misfortune.
W. H. Y. Hackett, for the petitioner.
Goodall, and R. M. Thompson, of Mass., for certain legatees.
The facts reported justify the removal of the executor. We have no occasion to inquire whether the petitioner proves a case, because, if the appeal were allowed, the decree of the probate court would not be reversed.
Petition denied.
ALLEN, J., did not sit.