Grafton,
June 29, 1918.
Augustus M. Clough & a., Ex’rs, Ap’ees, v. George Wilton, Adm’r.
Under P. S., c. 200, s. 2, an appeal from a probate decree allowing a will must be , claimed within sixty days exclusive of the day on which the appeal is filed.
One who is prevented from claiming an appeal by a mistake of counsel may petition for relief under P. S., c. 200, ss. 7-9.
Probate Appeal. The probate court allowed the will of Ella A. Higginson on March 3, 1917, and the defendant appealed from that decree on May 3 of that year. The plaintiffs moved to dismiss because the appeal was not claimed within sixty days after the decree appealed from was made. Transferred by Sawyer, J., without a ruling, from the May term, 1918, of the superior court.
Drew, Shurtleff, Morris & Oakes, for the plaintiffs.
George W. Pike and Lawrence F. Sherman (of Massachusetts), for the defendant.
*67Young, J.
The fact P. S., c. 2, s. 34, provides that the day from which time is to be reckoned is to be excluded in computing the time within which an act must be done, tends to the conclusion that that is the only day to be excluded in making the computation. As there is nothing to rebut this conclusion it must be held that the appeal was not claimed within the time limited by P. S., c. 200, s. 2. It does not necessarily follow that the appellant is remediless, for ss. 7-9 of this chapter provide that one who is prevented from claiming an appeal by accident, mistake or misfortune may petition the court for relief, and it has been held that a mistake of counsel may be a misfortune within the meaning of s. 7. Grout v. Cole, 57 N. H. 547; St. Pierre v. Foster, 75 N. H. 10, 11.
Case discharged.
All concurred.