
    ORANGE COUNTY, MARCH TERM, 1884.
    Present: Royoe, Cb. J., Ross, Powers, and Taet, JJ.
    E. H. LILLIE by Guardian v. ELISHA LILLIE’S ESTATE.
    
      A.ypypeal from Probate Court. Fraud, Accident, and Mistake Statute, R. L. s. 1426.
    The petitioner filed a bond for appeal in the Probate Court, and he and his counsel understood that the probate judge would make the necessary papers; but he omitted to do so, supposing that he had nothing to do in • making them. The court below found that the petitioner was prevented from taking an appeal by mistake, and in its discretion allowed him to enter his appeal. Held, that there was no error; and that the decision was not revisable.
    Petition for leave to enter an appeal from a decree of the Probate Court. Heard by the court, June Term, 1883, Rowell,. J., presiding. The court granted leave to enter the appeal.
    
      D. G. Denison <& Son, for the petitioner.
    iY. L. Boydé'.i and F. V. Randall, for the defendant.
   The opinion of the court was delivered by

Taet, J.

This case was a petition to the County Court for leave to enter an appeal from the Probate Court, brought under sec. 1426, R. L. No application for an appeal was filed. The petitioner filed a bond for the appeal, and understood that the judge of the Probate Court was to make all other necessary papers, and his counsel so understood it; but the judge did not understand that he was to do anything relative to the matter. 'The court below found that the petitioner had been prevented from taking an appeal by mistake, and granted him leave to enter it. The section of the statute above referred to gives the court power to grant such leave in its discretion in all cases where the petitioner has been prevented from taking or entering his appeal by fraud, accident, or mistake. There was evidence before the County Court that the failure to take the appeal was by mistake; and under such circumstances the action of that court will not be revised here. We think that the facts found by the court below brought the ease directly within the statute, and, where such is the fact, the discretion exercised by the court will not be disturbed. Burton v. Barlow's Est., 55 Vt. 434.

Judgment affirmed and cause remanded.  