Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-10-16
KNOX COUNTY.

Emma Monroe Carter ct al, appellants
from decree of Judge of probate.
The case is stated,in the ruling of the
presiding justice as follows:
In this ease. which is an appeal from
the probate OF will, leave was granted
TO these appellants, ~ the January term,
1913. Of this court, to take aud enter an
appeal from the decree complained of.
No conditions were named. nor terms
imposed. No time was fixed within which
the appeal should be taken. No bond
was In terms required. and it follows
that no penal sum for the bond, nor time
for filing the same was fixed
The appellants took their appeal. dated
February l, 1913. and March 1. 1913.
the appeal and reasons for appeal were
ordered to be filed and recorded by the
judge of probate for this county. The
appellants also filed an instrument in the
form of an appeal bond in the penal sum
of two hundred dollars. This instr,t-
ment was dated February "a. 1918 There
were no seals upon it, but was APP
proved by the judge of probate on March
], 1919
On the second day of the term. the APP
pellants filed their motion for leave ia
amend their appeal by affixing seals to
the signatures on the instrument filed as
an appeal bond, or by filing a new bond
upon such conditions as the court may
| order. This motion was overruled
To this ruling the case comes up on ex.
ceptions. We think the ruling was right
| A probate appeal is not common Law
procedure. 1t is a matter of statutory
prescription and gives no latitude fol
construction as the language is plain
and 1inambiguous. r. S. Chapter 81, Sec.
ton ~, relating TO the requirements OF
probate bonds in case of appeal provides
as follows: Within the time limited fol
claimine an appeal, the appellant shall
! lle in the probate office, his bond to
the adverse party. or to the judge of pro.
! bate for the benefit of the adverse party
| Tor stteh sum and with such sureties, as
| the Judge approves; conditioned to prose.
cute his appeal with effect"
| Whlle IN the present case the appea
was entered by leave of court, under
| section 80, there is no difference In the
| procedure whether entered directly frou
the probate court or by leave of the SUI
| preme court
Two questions arise: "a Was a bono
/ OF the statutes? (2) IL not, was the in
strument purporting to be bond
amendabie" Upon the first inquiry i
/ may be said that it seems to be well set
tied In this state that an instrument, al
thoush purportng TO be a bond if no
sealed, cannot be regarded as a bond il
contemplation of the above statute.
RMS brings us to the second inquiry
was the amendment allowable? We thin
not To permit the addition of seals t,
Il BOND filed by the appellants would b.
equivalent to allowing them to file
new bond, inasmuch as the addition o
seals would make new contract be
tween the obligors and the sureties j,
the bond, and the oblfgee
The filing of IA proper bond is a con
dluon precedent to the entry of an eff
iectiVe probate appeal, accordingly m
appeal was pending in the supreme cour
OF probate in which an amendment of tn
bono could he offered
Decree below affirmed with additions
costs. Received Oct a. 1873