THE FIRST NATIONAL BANK OF BOSTON, executor, [Note 1] vs. MARY E. SULLIVAN, executrix, & others (and four companion cases).

GRANT, J. At the time of his death on July 17, 1960, Paul F. Bowser was the record owner of various securities representing substantial equity and debt positions in Bay State Harness Horse Racing and Breeding Association, Inc. (Bay State), which owns and operates a racetrack in Foxborough, and a substantial equity position in Norfolk County Concessionaires, Inc. (Norfolk), a corporation supplying food and drink at the track. Thomas J. Colbert was appointed as the executor of Bowser's will by a decree of the Probate Court for Middlesex County entered on August 18, 1960. During the period from July 17 through August 8, 1961, fourteen separate petitions for the retention of assets were filed by or in behalf of various persons who claimed to be the equitable owners of portions of the securities standing in Bowser's name at the time of his death. Those petitions were all promptly allowed, with pertinent orders for retention. On July 23, 1962, one Elias M. Loew, who had held substantial equity and secured debt positions in Bay State and Norfolk since 1947, purchased the interests of all the residuary legatees under Bowser's will. Such purchases were subsequently confirmed by the court on January 14, 1963.

On January 16, 1969, Colbert, as the then executor, filed a petition on the equity side of the court against all those who had filed petitions for the retention of assets, against one claimant who had not filed such a petition, and against Loew, seeking declaratory relief with respect to all the claims which had been asserted against the securities of Bay State and Norfolk standing in Bowser's name. Separate petitions, similarly seeking declaratory relief with respect to their particular claims, were filed by four of the claimants. Loew was named or permitted to intervene as a respondent in those four petitions. All five petitions were heard together. The decrees (one of them as amended) entered by the judge determined, among other things, that each of certain named claimants was the equitable owner of certain securities of Bay State or Norfolk (or both) standing in Bowser's name at the time of his death. Loew appealed from all the decrees. All the decrees were affirmed

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(with certain modifications) by this court in First Natl. Bank v. Sullivan, 2 Mass. App. Ct. 452 (1974) (the prior case).

Subsequent to the issuance of our rescript in the prior case counsel for certain of the successful claimants filed in the Probate Court petitions by which they severally sought to have the court fix and determine their compensation and expenses in connection with the entire litigation (including the appeal) and to "direct payment thereof from the [Bowser] estate generally or as the [c]ourt may determine." In addition, one of the claimants filed a separate motion "under Mass. G. L. c. 215, Sections 39B and 45, that the [c]ourt provide payment to her out of the [e]state . . . for counsel fees and other expenses" incurred by her (and by her testator prior to his death) in connection with portions of the same litigation. [Note 2] Counsel for the claimants and counsel for Loew submitted somewhat conflicting forms of judgments to be entered after rescript in the prior case.

The judge held an evidentiary hearing on the question of counsel fees and expenses and conferred with counsel concerning the proposed judgments. He made findings as to the fair and reasonable value of the services rendered by each petitioning counsel and as to the expenses (if any) incurred by each such counsel in connection with the entire litigation, including the appeal in the prior case; he also made a like finding with respect to the services already paid for by the claimant who had filed a separate motion. He then (February of 1975) reported to this court the question whether he has the authority to award the requested fees and expenses out of the Bowser estate. Mass. R. Civ. P. 64, 365 Mass. 831 (1974). It is clear from the report that the judge intends to exercise his discretion

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in favor of making awards out of the estate if we determine that he has the power to do so. Loew, as the sole residuary legatee (by purchase) of the Bowser estate, takes the position that no such power exists. [Note 3]

THE POWER TO AWARD COUNSEL FEES AND EXPENSES OUT OF THE ESTATE.

Several considerations lead us to the conclusions (a) that the judge had the power to award the requested counsel fees and expenses out of the Bowser estate under the provisions of G. L. c. 215, Section 39B, inserted by St. 1951, c. 312, [Note 4] and as in effect at the time of the report in this matter, and (b) that the judge continues to have that power under the provisions of G. L. c. 215, Section 39B, as appearing in St. 1975, c. 400, Section 70, [Note 5] and as now in effect.

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Our first consideration is the actual language of Section 39B in its original form. The first sentence of that section set out in order at least five separate, distinct and readily recognizable categories of contested proceedings commonly encountered by Probate Courts in the course of exercising their jurisdiction over the administration of estates and trusts. See note 4. The present proceedings obviously did not fall within any of the categories which we have numbered as [2], [3] or [5] of that sentence. There is room for doubt whether they fell within category [4]. [Note 6] They did fall literally within category [1], namely, contested proceedings "in equity". [Note 7] The record legal title to the securities in question had vested in Colbert in his capacity as the then executor of Bowser's will (Reardon v. Whalen, 306 Mass.

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579, 581 [1940]; Kobrosky v. Crystal, 332 Mass. 452, 461 [1955]), and he was under a duty to obtain adjudications of the claimants' rights (if any) in and to the securities. See Hurley v. Noone, 347 Mass. 182, 190 (1964). As appears from the prior case and above, Colbert performed that duty by invoking the equity jurisdiction of the court to grant declaratory relief with respect to all claims; four of the (now successful) claimants responded by filing separate petitions in equity with respect to their particular claims. [Note 8] There can be no doubt that the claimant who has now filed a separate motion for reimbursement of her counsel fees would have been a "party" within the meaning of the first and second sentences of the original Section 39B; nor can there be any doubt that each of the now petitioning counsel would have been the "counsel of . . . [a] party" within the meaning of the fourth sentence of that section. Looking solely at the language of that section, we conclude that it would have permitted the judge, in the exercise of his sound discretion, to make appropriate awards of counsel fees and expenses to the claimants or their counsel out of the Bowser estate in the final decrees originally entered by him prior to Loew's appeals to this court.

It should be noticed, however, that the second sentence of the original Section 39B contemplated that "[t]he sums awarded" out of the estate "be specified in the decree" and that under the third sentence of that section any award of counsel fees and expenses from the same source in connection with any appeal was to be separately determined "after the coming down of a rescript . . . unless the rescript shall specifically direct otherwise." [Note 9] The contemplated procedures were not employed in the prior case, and none of the original decrees contained any provision for an

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award of counsel fees from any source. [Note 10] The judge's findings in the present proceedings as to the fair and reasonable value of the services rendered and the expenses incurred by the various counsel do not distinguish between (a) the services rendered and expenses incurred in connection with the original trial and (b) those rendered and incurred in connection with the appeal in the prior case. We do not think either of the failures to comply with the contemplated procedures presented any real obstacle to the exercise of the basic powers accorded the judge under the provisions of the original Section 39B. Our rescript in the prior case required the taking of further evidence, certain modifications in the original decrees, and the entry of new judgments after rescript. It has been determined in substantially similar situations arising under the provisions of G. L. c. 215, Section 45, that Probate Courts may award prevailing counsel their fees and expenses after rescript in connection with all phases of the litigation. See and compare Untersee v. Untersee, 299 Mass. 417, 423-424 (1938); Hayden v. Hayden, 326 Mass. 587, 595 (1950); New England Trust Co. v. Triggs, 339 Mass. 453, 455-456 (1959).

Looking again solely at the language of the original Section 39B (note 4, supra), we conclude that the judge had the power to award counsel fees and expenses out of the Bowser estate to the successful claimants or their counsel in connection with the entire litigation at the time of his report in the present proceedings. We see nothing in the changes in that section which were effected by St. 1975, c. 400, Section 70 (see note 5, supra), which would prevent the judge's exercise of that same power at the present time. [Note 11]

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Loew's only substantial argument in opposition to the existence of the power contended for by the petitioning counsel and the successful claimant is that the prior proceedings did not result in any benefit to the Bowser estate but, on the contrary, resulted in the actual depletion of the estate. Great reliance is placed on the case of Miller v. Stern, 326 Mass. 296 (1950), in which the court reversed an award of counsel fees out of an estate to counsel for a contestant who had succeeded in depleting the assets of an estate for the benefit of his clients and, in so doing, had frustrated the intention of the testatrix as expressed in her will. It was held in that case that no award of counsel fees should be made out of the estate when (as in the present cases) the services in question have not been rendered to the estate unless the services have resulted in a benefit to the estate in the sense of creating, preserving or increasing the same (326 Mass. at 299-304).

We think the reliance on the Miller case is misplaced. That case was decided under the original G. L. c. 215, Section 39A, [Note 12] a year prior to the enactment of G. L. c. 215, Section 39B,

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in its original form. Whatever may be the continued vitality of the so called "benefit conferred" rule in cases arising under Section 39A (see Brayton v. Stoughton, 335 Mass. 321, 326-327 [1957]; Lane v. Cronin, 345 Mass. 52, 54 [1962]), the knowledgeable writers on the subject are clear on the point that one of the purposes of Section 39B was to abrogate so much of the decision in the Miller case as required that services of counsel which are not rendered to an estate must be of some benefit to the estate as a condition of their being paid for out of the estate. See Richter, Probate Fees: The Story of a Remedial Statute, 32 B.U. Law Rev. 54, 59-62 (1952); Newhall, Settlement of Estates, Section 33, and n. 18 thereto (4th ed. 1958). [Note 13] There is nothing on the face of Section 39B which stands in the way of its intended purpose, and we do not think we would be warranted in implying any such condition as that contended for by Loew on the exercise of the powers granted to probate judges under that section. [Note 14]

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We hold that the judge has the authority to award the requested counsel fees and expenses out of the Bowser estate under the provisions of G. L. c. 215, Section 39B, as amended. [Note 15]

In order to avoid any misunderstanding of our holding, we repeat that the only question which has been reported to us and which we have considered is that of the authority of the judge to award the requested fees and expenses out of the Bowser estate in the circumstance of these particular cases. We assume that in the sound exercise of his "discretion as justice and equity may require" (first sentence of Section 39B) the judge has considered, and will consider, the fact that none of the services rendered or expenses incurred in these cases has resulted in any real benefit to the Bowser estate except in the sense that the resolution of these controversies has clarified the question of what assets belong to the estate and has facilitated the distribution of the true residue of the estate. See Mulcahy v. Boynton, 341 Mass. 171, 178 (1960), and Ronan v. Naumkeag Trust Co. 361 Mass. 892 (1972), both of which were decided with reference to Section 39B. [Note 16]

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THE PROPOSED JUDGMENTS AFTER RESCRIPT.

Although he physically appended copies of his proposed judgments after rescript to his findings and form of report, the judge did not actually report to us any question concerning the content of those judgments. The claimants briefed certain questions; Loew, quite properly, did not. [Note 17] We detected certain difficulties with the proposed judgments and, at the argument, in the hope of avoiding further litigation (compare Wellesley College v. Attorney Gen. 313 Mass. 722, 731 [1943]), directed Loew's counsel to brief any questions he might wish concerning the judgments. Counsel did so, and counsel for the claimants have submitted a reply brief. The difficulties with the proposed judgments are technical, administrative in nature, and peculiar to the circumstances of these cases. We deal with them briefly in the Appendix hereof, with the thought that it is enough that the judge and counsel understand our views.

CONCLUSIONS.

The question reported is answered in the affirmative. The proposed judgments after rescript are to be modified in the respects required by the Appendix hereof and may be modified in the additional respect suggested in the Appendix. Counsel fees and expenses in connection with the present petitions and motion, and in connection with the report, are not to be awarded out of the Bowser estate.

So ordered.

APPENDIX

1. All references to taxes, the expenses of administration and (where applicable) the expenses of arbitration are to be struck from the paragraphs numbered 2, 3, 8 and 9 of the proposed judgment in No. 1108 for the reason, as decided in the prior case, that none of the disputed securities is a part of the Bowser estate.

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2. The paragraph numbered 5 of the proposed judgment in No. 1108 is inadequate and, in several respects, inconsistent with the original decree in that case and with what we decided in the prior case. The original decree, which we affirmed with certain expansions, required Loew to make demand for payment of the Norfolk note (remaining balance $100,000) on both Norfolk and Bay State. We unequivocally ordered that Loew "at his expense, promptly institute and diligently prosecute to their conclusion such legal proceedings as may be necessary to secure payment of the note if it should not be paid within a reasonable time . . . following the demands for payment" (2 Mass. App. Ct. at 466; emphasis supplied). Simply presenting an execution to Norfolk will not satisfy our command. Without being exhaustive, "diligent" efforts to "secure payment" will require the prosecution of proceedings against Norfolk under G. L. c. 156B, Section 105, before Loew can resort to the captive securities of Norfolk. Such efforts will also include proceedings to realize on the Bay State note and mortgage held by Loew as additional security for the Norfolk note. It is too late to argue to the contrary. The present paragraph numbered 5 is to be struck in its entirety. New provisions are to be substituted which will completely satisfy our command. The judge, in the exercise of his discretion, may wish to include an additional provision under which he will retain jurisdiction of this phase of the case and supervision over Loew's good faith efforts to secure payment of the Norfolk note without resorting to any of his collateral.

3. The bank, as the holder of record of the disputed securities of Norfolk, will have to take whatever formal steps are necessary to comply with the restrictions on the transfer of Norfolk shares which are found in its by-laws. See the prior case (2 Mass. App. Ct. at 457-460). However, the successful claimants to those securities are the equitable owners thereof (subject to the presently existing pledge to Loew), and they should have the right to name arbitrators and participate in the conduct of the arbitration proceedings at their expense. The paragraph numbered 8 of the proposed judgment in No. 1108 is to be supplemented to reflect these aspects of the rights and obligations of the successful claimants to the Norfolk securities.

4. The word "with" which appears in paragraph numbered 1 of the proposed judgments in Nos. 1118, 1119, 1120 and 1123 is to be struck and replaced by the word "without."

5. The judge's findings as to the fair and reasonable value of the services and expenses of the respective counsel do not differentiate between the services rendered and expenses incurred in connection with No. 1108 as opposed to the services rendered and expenses incurred in connection with any of Nos. 1118, 1119, 1120 and 1123. If the judge persists in his apparent intention to award counsel fees and expenses out of the estate in the paragraph numbered 11 of the proposed judgment in No. 1108, the paragraph numbered 3 of the proposed judgments in Nos. 1118, 1119, 1120 and 1123 should be struck.