
    Thomas L. Robinson vs. Hannah V. Durfee.
    The entry of an appeal from a decree of a judge of probate, when leave to enter it is granted on petition under Gen. Sts. c. 117, § 11, should be made at the term at which leave is granted; and, if not made until the second term held in the county after the leave is granted, it will be too late.
    Appeal from a decree of the judge of probate, passed December 5,1860, allowing Fidelia Durfee Robinson and George Durfee Robinson, minor children of the parties, to take the names of Fidelia Durfee and George Durfee, respectively. The ease was reserved by Dewey, J. for the determination of the whole court, upon facts which are stated in the opinion.
    
      C. B. Goodrich & E. Avery, for the appellant.
    
      C. I. Reed, for the appellee.
   Metcalf, J.

The entry of an appeal from a decree of a judge of probate, when leave to enter it is granted on petition under the Gen. Sts. c. 117, § 11, should be made at the term at which leave is granted. In the present case, leave to enter the appeal was granted on the last day of April term 1862; but through some oversight or misapprehension, (as is alleged,) the entry was not then made. And perhaps, at the next term, in October 1862, the court might have allowed the entry to be made as of the April term. But it was not then made, nor was there any application to the court to permit it to be then made. The entry was first made on the last day of the November term 1862, by leave of the judge who held that term; but this leave was granted provisionally, and subject to the decision of the whole court on the question whether the appeal could then be entered. The appellee had previously filed a complaint that the appellant had failed to enter and prosecute his appeal, and praying for an affirmance of the decree of the judge of probate, according to the provision of the Gen. Sts. c. 117, § 17.

The court are all of opinion that on account of the loches of the appellant, he was too late in entering his appeal; and that it must be dismissed, and the decree of the judge of probate affirmed.  