This is the first known instance in which one person has attempted to claim an appeal from a decree of a judge of probate, after the decree has been affirmed by this court, upon an appeal therefrom by another person. And without deciding whether leave to enter an appeal can ever be granted in such a case, we are of opinion that it cannot be granted unless the petitioner, in the language of the Rev. Sts. c. 83, § 39, is “without default,” and “justice requires a revision of the case.”
This petitioner is not without default. She knew, in July 1857, that her uncle, another heir at law of the testator, had appealed from the decree of the judge of probate, and that the appeal was pending in this court. If she did not choose to rely on his appeal, and the result of it, she might, as soon as she had notice of it, have petitioned to become a party to it, or to enter an appeal in her own behalf. If such petition had been granted, she might have prosecuted the appeal to a final result, although her uncle had withdrawn his own appeal. But it is manifest that she relied entirely on his management of the appeal; for it does not appear that she ever expressed any wish to him, or made any communication to him respecting the prosecution thereof. She must therefore abide by his disposition of the case and by the affirmance of the decree appealed from by him.
The petitioner asks leave to amend (if the petition, as drawn, cannot be granted) by adding a special prayer to vacate and set aside the judgment of this court affirming the decree of the judge of probate. We greatly doubt our authority to vacate that judgment. But if we have such authority, we see no better reason for exercising it in this case, than for granting the petition in its present form. Petition dismissed.
Hoar, J., did not sit in this case.