The question is, whether the probate court was right in decreeing probate of the will in solemn form. The appellant claims that, although her petition was for probate in common form, and was without notice to the heirs, yet, from the fact that the heirs were represented by counsel at the hearing on that petition, who examined the witnesses, the notice to the heirs required by the statute was unnecessary, and the probate was, in legal effect, in solemn form.
Probate of a will in solemn form is made after all persons whose interests may be affected have been duly notified and had an opportunity to be heard. Noyes v. Barber, 4 N.H. 406; 2 Redf. Wills 301. The statute requires notice to the executor, if practicable, and by publication to all persons interested. G.L., c. 194, s. s.
From the report of the referee it appears that, June 24, 1879, the appellant, having been cited to settle her account as administratrix, appeared and presented a petition for the probate, in common form, of the will of her deceased husband. Unless the requirements of the statute were waived by the heirs, there was not a probate in solemn form. On the question of waiver, the referee finds that none of the heirs were present or had any knowledge of any proceedings to prove the will of the deceased. They had not employed or instructed counsel in regard to a lost will. The fact that the hearing was postponed at the request of counsel, taken in connection with the other fact that at the adjourned hearing the appellant was notified that the heirs wished the will proved in solemn form, shows that they did not intend to waive the notice required by the statute, and the further fact that the judge of probate decreed that the will should be proved in solemn form also shows that he did not understand that there was any waiver of a compliance with the statute.
Appeal dismissed. *Page 30