Lewis v. Nat'l Shawmut Bank of Boston

• Citation: 303 Mass. 187,21 N.E.2d 254
• Parties: LEWIS v. NATIONAL SHAWMUT BANK OF BOSTON.
• Decision Date: 24 May 1939
• Court: United States State Supreme Judicial Court of Massachusetts

303 Mass. 187

21 N.E.2d 254

LEWIS

v.NATIONAL SHAWMUT BANK OF BOSTON.

Supreme Judicial Court of Massachusetts, Norfolk.

May 24, 1939.

Suit by Bessie Lewis against the National Shawmut Bank of Boston and others for revision of a decree setting aside a trust deed, and for reduction of sums awarded therein as counsel fees, costs and expenses. On claim of appeal.

Decree affirmed.Appeal from Probate Court, Norfolk County; McCoole, Judge.

F. L. Simpson, of Boston, for petitioner.

R. G. Dodge, of Boston, for respondent National Shawmut Bank et al.

Joseph Wentworth, of Boston, for trustees.

QUA, Justice.

The executors of the will of Benjamin Lewis brought in the Probate Court a petition in equity against the trustees named in an instrument purporting to be a deed of trust made by Lewis shortly before his death. On November 27, 1936, a decree was entered setting aside the trust deed on the ground that Lewis was mentally incompetent to make it and ordering the executors to pay very substantial sums as ‘counsel fees, costs and expenses as between solicitor and clients' to the attorneys who had represented various parties.

The present petitioner is Lewis' widow. She was a party to the former petition, but did not appeal from the decree. In this petition, filed March 22, 1937, she prays that the decree be modified and revised and that the sums awarded be reduced. Although the form of this petition seems more appropriate to a proceeding to revoke or modify a decree on the probate side of the court (see Goss v. Donnell, 263 Mass. 521, 161 N.E. 896) than to a bill of review by which alone a final decree entered after full hearing in an equity case may be revised (see Untersee v. Untersee, Mass., 199 N.E. 316;Frechette v. Thibodeau, 293 Mass., 132, 136, 200 N.E. 538), we nevertheless treat the petition as a bill of review, but without deciding that it would be adequate for that purpose if the result of the case depended upon this point. Mackay v. Brock, 245 Mass. 131, 134, 139 N.E. 517.

One of the uses of a bill of review is to correct error of law apparent on the record of the original suit. Hyde Park Savings Bank v. Davankoskas, Mass., 11 N.E.2d 3. The appellant's argument is directly solely to such alleged errors. We consider her contentions in turn.

There was no error of law in ordering the sums fixed as counsel fees to be paid directly to the several counsel instead of to the parties whom they represented. The last sentence of G.L.(Ter.Ed.) c. 215, s. 45, expressly authorizes the awarding of costs and expenses directly to counsel. This sentence was added by St.1931, c. 120. The petitioner contends that section 45 before that addition applied only to proceedings on the probate side of the court; that the power to award counsel fees out of the fund in controversy on the equity side of the Probate Court was derived wholly from general equity practice and not from section 45; and that, after the amendment of 1931, that section, with the added power to make the award directly to counsel instead of to the parties, still applies only to proceedings on the probate side. There is plausibility in this contention, but the weight of the argument seems to us against it. The power to award to parties expenses in addition to taxable costs was first added by St.1884, c. 131, shortly after the decision in Brown v. Corey, 134 Mass. 249, wherein it had been held that only ‘legal or taxable’ costs would be allowed in probate proceedings. Mulloney v. Barnes, 266 Mass. 50, 53, 164 N.E. 917. No doubt the primary motive for the passage of the statute of 1884 was to extend the power of the court in probate proceedings, and the power to allow expenses to parties already existed without any statute in equity proceedings. See Willard v. Lavender, 147 Mass. 15, 16 N.E. 582;Sears v. Nahant, 215 Mass. 234, 240, 102 N.E. 491, Ann.Cas.1914C, 1296;Boynton v. Tarbell, 272 Mass. 142, 145, 172 N.E. 340. See also Conley v. Fenelon, 266 Mass. 340, 345, 165 N.E. 382. Nevertheless the section affected, Pub.Sts. c. 156, § 35, contained no limitation to probate proceedings, but was couched in general terms both before and after the amendment of 1884. Even when first enacted as Rev.Sts. c. 83, § 47, this section referred to ‘all cases that are contested, either before the judge of probate, or in the supreme court of probate,’ and as early as that the probate courts had some equity jurisdiction. See Rev.Sts. c. 69, § 12. See also Ensign v. Faxon, 224 Mass. 145, 147, 148, 112 N.E. 948. In its present form, after large equity jurisdiction has been conferred upon the probate courts, and after several revisions of the statutes, G.L.(Ter.Ed.) c. 215, § 45, still refers in general to ‘contested cases before a probate court or before the supreme judicial court on appeal.’ A strong ground for thinking that the amendment of 1931, which permitted the award of counsel fees directly to counsel, was believed and intended to apply to proceedings in equity in probate courts as well as to strictly probate proceedings is found in the fact that that amendment was enacted at the next session of the Legislature after the decision in Boynton v. Tarbell, 272 Mass. 142, 172 N.E. 340, wherein it was held that such fees could not be awarded directly to counsel. And Boynton v. Tarbell, supra, was an equity case. No sufficient reason appears for a distinction in this matter of statutory construction between equity proceedings and probate proceedings in the same court, even though the statute does not apply to equity cases originating in the Supreme Judicial Court or in the Superior Court, and the power of these courts as to such allowances is left to the general rules of equity practice. In a number of recent cases this court has recognized the application of the statute (G.L. (Ter.Ed.) c. 215, § 45) to cases on the equity side of probate courts. First National Bank of Boston v. Charlton, 281 Mass. 72, 76, 183 N.E. 250;North Adams National Bank v. Curtiss, 284 Mass. 330, 336, 187 N.E. 546;Old Colony Trust Co. v. Third Universalist Society of Cambridge, 285 Mass. 146, 150, 188 N.E. 711, 91 A.L.R. 837;Boston Safe Deposit & Trust Co. v. Pratt, 287 Mass. 23, 27, 191 N.E. 31;Old Colony Trust Co. v. Richardson, Mass., 7 N.E.2d 432;Smith v. Livermore, Mass., 10 N.E.2d 117.

We are not prepared to say that there was error of law apparent on the record in allowing, under the general heading of ‘counsel fees, costs and expenses,’ a sum to The National Shawmut...