Decided May 4, 1937.
PROBATE APPEAL, from the refusal of the probate court to grant a petition for the reopening of three accounts filed by the defendant as administrator of the estate of the father of the parties hereto. These accounts were allowed in April, 1923, December 1926, and April 1928, and this petition was filed in the probate court on December 12, 1935.
On September 10, 1929, the brothers filed a stipulation or contract in a proceeding in equity then pending between them in the Superior Court for Cheshire County, under the terms of which they agreed to the settlement of the items in the accounts on which the plaintiff wishes further hearing in this proceeding. In the Superior Court the defendant demurred and moved that this appeal be dismissed on the ground of laches. Young, J., took judicial notice of the contract above referred to, sustained the defendant's demurrer, granted his motion to dismiss and transferred the plaintiff's exceptions thereto.
Howard H. Hamlin and Benjamin H. Bragg (Mr. Hamlin orally), for the plaintiff.
Roy M. Pickard (by brief and orally), for the defendant.
"The issue as to laches is primarily one of fact" (Hould v. Company, 83 N.H. 474, 476, and cases cited), and it cannot be said that an unexplained delay of from seven years and eight months to twelve years and eight months requires a finding of reasonable diligence as a matter of law.
It is frivolous to suggest that the court may not take judicial notice of its own records for any purpose for which those records may become material. Wigmore, Evidence, s. 2579.
ALLEN, C. J., did not sit.