In re Davis' Estate

• Decision Date: 04 September 1941
• Citation: 130 N.J.Eq. 167,21 A.2d 689
• Parties: In re DAVIS' ESTATE.
• Court: New Jersey Supreme Court

21 A.2d 689

130 N.J.Eq. 167

In re DAVIS' ESTATE.

Prerogative Court of New Jersey.

Sept. 4, 1941.

Syllabus by the Court.

Notice of appeal filed one day after time limited by statute may be deemed filed as of time where satisfactory reasons for failure within time are shown.

Proceeding in the matter of the estate of Mary Elizabeth Davis, deceased. From an unsatisfactory decree of the Orphans' Court, an appeal was taken. On motion to dismiss the appeal.

Order advised in accordance with opinion.

See, also, 15 A.2d 895, 18 N.J.Misc. 655.

Nathan N. Schildkraut, of Trenton, for appellant Anna P. Earle and another.

Stanton T. Lawrence, of Rutherford, for Rutherford Trust Co.

LEWIS, Vice Chancellor.

This matter is before the court on a motion to dismiss an appeal from the Orphans' Court on the ground that the notice of appeal was not filed within the thirty days limited by law.

A decree was entered in the Orphans' Court on the 13th day of January, 1941. The notice of appeal was not actually filed in the court until February 14th, the last day for filing having been February 13th. It appears from the affidavits submitted that the proctor for appellants did not learn of the entry of the decree until January 20th, when he received a copy from the counsel for respondents. The proctor made inquiry of the appellants who told him on January 14th that they themselves had been informed from the Surrogate's Office that the decree would be entered in about a week. On February 8th, the notice of appeal was sent to Hackensack for filing, but through some mistake, it was not filed until the 14th.

It would seem that appellants had proceeded with due diligence and that it was through no fault of theirs that the filing of their notice was one day late. They are, therefore, entitled to the relief that they now ask, namely, that the appeal be found by this court to have been filed as of time. The question of the power of the court to grant their relief had been settled by the Court of Errors and Appeals in Re Casey's Estate, 127 N.J.Eq. 101, 11 A.2d 38, 40. The court says:

"While it is true that litigants are obliged to watch the dockets of courts and thus keep themselves informed as to the entry of decrees and orders in litigation in which they are interested, it is equally true that circumstances may arise which, if they do not absolve litigants from their stated duty, do however operate to relieve them of the consequences of such failure. In re Hathorn's Will, 94...