Counsel for the three persons who unsuccessfully opposed the petition for the allowance of the will were not entitled to payment of their fees and expenses from the estate generally under either Section 39A or Section 45 of G. L. c. 215, because their services were not rendered in the administration of the estate nor for the estate or its representative, nor did their services confer a benefit on the estate. See Mulloney v. Barnes, 266 Mass. 50 , 54 (1929); Conley v. Fenelon, 266 Mass. 340 , 343-345 (1929); Collis v. Walker, 272 Mass. 46 , 49 (1930); Potter v. Mullaney, 301 Mass. 497 , 500 (1938); Miller v. Stern, 326 Mass. 296 , 300-304 (1950); Lane v. Cronin, 345 Mass. 52 , 54 (1962); Ronan v. Naumkeag Trust Co., 361 Mass. 892 (1972); Newhall, Settlement of Estates Sections 32 (at 118-119) and 33 (at 127-128) (4th ed. 1958); but see Greene v. Cronin, 314 Mass. 336 , 344-345 (1943). Contrast Brayton v. Stoughton, 335 Mass. 321 , 326-327 (1957) (fairness required that counsel for certain heirs be paid from the estate for services in opposing unlawful plan of distribution); Perry v. Perry, 339 Mass. 470 , 484-486 (1959) (testamentary trust charged for payment of fees to counsel who successfully defended the trustees); New England Trust Co. v. Triggs, 339 Mass. 453 , 456-457 (1959) (counsel paid fee from testamentary trust for services which benefited the trust); First Natl. Bank v. Sullivan, 4 Mass. App. Ct. 414 , 417-423 (1976) (counsel paid fee under the provisions of G. L. c. 215, Section 39B, to which the "benefit to the estate" rule does not apply). Because Section 39A does authorize a Probate Court to determine a fee for legal services to "a devisee, legatee, distributee or any other person interested [in an estate]" and to order it paid "from funds in the hands of the representative of the estate and belonging to" the said legatee, devisee, distributee or other person, the probate judge may, on motion of counsel for the two sisters of the testator who were named as legatees in the will (if those legacies have not yet been distributed), reconsider his request for a counsel fee from that viewpoint. Compare Miller v. Stern, 326 Mass. at 304-305. The portion of the decree awarding counsel fees is to be struck and the case remanded for further proceedings not inconsistent herewith.
1. After the rape complainant had given her testimony and been excused, the prosecution put in evidence a hospital report which stated, in part, that a physical examination conducted two hours after the alleged rapes disclosed the presence of a "few non-motile sperm" in her vagina. The defendant then moved to have the complainant recalled to the stand for the stated purpose of putting questions to her concerning other sexual activity which might explain the presence of the sperm. The denial of that motion is assigned as error. The defendant gave an
alibi, but the defense at no time conceded that the alleged rapes had actually occurred, and that remained a part of the Commonwealth's burden of proof. In these circumstances, in the opinion of the majority of the panel, the general rule barring inquiry into specific prior acts of intercourse (Commonwealth v. McKay, 363 Mass. 220 , 226-227 ; Commonwealth v. Gouveia, 371 Mass. 566 , 569 ) did not apply, and the proposed line of inquiry was proper for the reason stated in Commonwealth v. Duff, 245 Mass. 81 , 83 (1923). Compare the second sentence of G. L. c. 233, Section 21B, inserted by St. 1977, c. 110, which took effect after the trial in this case. It appears from the transcript, however, that the defendant, as one would expect in a rape case, had a copy of the hospital report earlier, and could, therefore, have anticipated the need to recall the complainant before she was excused. The defendant's failure to have saved his rights at that time put the case, in the opinion of a majority of the panel, within the general rule that the recall of a witness is ordinarily a matter subject to the discretion of the trial judge. See Commonwealth v. Hicks, 375 Mass. 274 , 276-277 (1978); Commonwealth v. Williams, 5 Mass. App. Ct. 809 , 810 (1977). No abuse of that discretion is shown. Indeed, it has not even been made to appear that the complainant was still available to be recalled to the stand. 2. The other assignment of error which has been argued is without merit.