Symmes v. Libbey

1 Smith & H. 137
Superior Court of New Hampshire·Decided February 15, 1807·Published

Opinion

Smith, C. J.,

now delivered his opinion.

The statute of Feb. 3, 1789 (ed. 1805, 165), expressly requires “that the judge of probate, before he allow the account of any executor relating to his executorship, shall cause the heirs of such estate to be notified, in such manner as he shall think most proper, of the time and place for examining and allowing such account.” By the word “ heirs,” as here used, we must doubtless understand those interested in the estate, whether devisees, legatees, or heirs properly so called. This provision of the statute seems to be no more than what the ecclesiastical law, that is, our common law, before required.

It has been said by the counsel for the appellee, though not much insisted on, that, as it was the duty of the judge of probate to cause notice to be given, and he was the judge of the manner of notifying, we are bound to presume that he discharged his duty, and that due notice has been actually given. If the judge of probate ordered notice, it must appear on the minutes of the proceedings. There are no such minutes, nor any evidence of the fact. Besides, though it is the duty of the judge to cause notice to be given, yet this duty is to be performed at the instance of the executor. The judge in this case was not bound to know that there was any such person in existence as Mary Elizabeth Symmes. The executor may have represented that she was dead, or that Mrs. Jackson, the mother, was the only person concerned in interest. We may therefore take it for granted that the judge of probate, before he proceeded to allow the account of administration presented by the appellee, did not cause the [139]*139appellant to be notified, in any manner, of the time and place for examining and allowing the account, and that in fact she had no notice.

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Symmes v. Libbey, 1 Smith & H. 137 (N.H. Super. Ct. 1807).

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