2. WILLS ( 166*)-UNDUE INFLUENCE-EVI- [ 8. WILLS (§ 331*)-PROBATE-REVOCATIONDENCE-CIRCUMSTANTIAL EVIDENCE. EVIDENCE-INSTRUCTIONS. Undue influence, vitiating a will, may be proved by circumstantial evidence. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*] 3. WILLS (§ 164*)—UNDUE INFLUENCE-EVI DENCE-ADMISSIBILITY. Where, in proceedings for the probate of a will making the second wife of testator the principal beneficiary, contested by a son of the former marriage substantially disinherited, on the ground of the undue influence of the second wife, there was no evidence of efforts on her part to induce testator to disinherit the son and make a will in her favor, the exclusion of evidence that about 12 years before the making of the will testator's first wife, in the presence of the son, charged testator and the second wife with illicit relations, and that neither of them denied their guilt, was not erroneous, when offered merely to show hostility of the second wife toward the son, though subsequent expressions of hostility, continuing to the date of the will and testator's death, were proved. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 403-414; Dec. Dig. § 164.*] 4. EVIDENCE (§ 76*)-PRESUMPTIONS-FAILURE TO TESTIFY. The failure of the proponent of a will, contested on the ground of proponent's undue influence, to testify, though in court, does not convert her silence into an inference of fact to be drawn by the jury that, if she had testified, her testimony would have been prejudicial to the validity of the will, since she could have been called as a witness by contestant; and an instruction that the jury could consider that the proponent was known as a witness at the beginning of the controversy, and that the contestant could call her as a witness, so that the jury could consider whether the fact that proponent did not testify should be regarded as a circumstance for or against her was unexcep tionable so far as it went. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. § 76.*] Where, in proceedings to probate a will, contested on the ground that it had been revoked, there was evidence that subsequent wills were prepared under testator's direction and tested the subsequent instruments testified that duly executed, and one of the witnesses who atsome of them possibly might have been codicils, though from his recollection he thought they were wills, an instruction that the jury could find that some of the subsequent instruments were codicils, and, if they so found, what effect, if any, the codicils, the contents of which were not shown, should have, as a modification or revocation of the original will, was for their determination, was proper. Dig. §§ 782-784, 786, 787; Dec. Dig. § 331.*] [Ed. Note.-For other cases, see_Wills, Cent. 9. WILLS (§ 324*) - REVOCATION-DESTRUCTION OF SUBSEQUENT WILLS. Where subsequent wills, alleged to have revoked a prior will offered for probate, were not found among testator's papers at the time of his death, their disappearance raised a presumption of fact for the jury that testator had destroyed the subsequent wills with the intention of reVoking them. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*] 10. WILLS (§ 297*) - REVOCATION - SUBSEQUENT WILLS-EVIDENCE. voked a prior will offered for probate, were not Where subsequent wills, alleged to have refound among testator's papers at the time of his death, his declaration, identifying the prior will as the one he wanted and the one which he had requested his counsel to procure for him, was competent on the issue of intention to destroy the subsequent wills and revive the prior will as his final will. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 690-696; Dec. Dig. § 297.*1 11. WILLS (§ 290*)-CONTESTS-REVOCATIONBURDEN OF PROOF. One contesting the probate of a will on 5. WILLS (§ 101*)-PROBATE-CONTESTS-DEC- the ground that it has been revoked has the LARATIONS OF TESTATOR. The declaration of testator, in the beginning of the instrument offered for probate as his will, that it is his last will and testament, is not conclusive. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 239, 240; Dec. Dig. § 101.*] 6. WILLS ($ 306*)-REVOCATION-ACTS CON STITUTING. A contestant of a will, who shows its revocation by the execution of an instrument in the form prescribed by Rev. Laws, c. 135, § 8, authorizing the revocation of a will by a writing signed, attested, and subscribed in the same manner as a will, need not prove the provisions of a later will, which could not be offered for probate. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 732, 733; Dec. Dig. § 306.*] 7. WILLS (§ 181*)-"REVOCATION"-ACTS CONSTITUTING-INTENTION OF TESTATOR. The making of a new will, which on its face purports to be testator's last will, operates to revoke former wills without words of express revocation; and the intention to revoke, though not alone sufficient, and the act of revocation being coincident, satisfy Rev. Laws, c. 135, § 8, authorizing the "revocation" of a will by some other instrument, signed, attested, and subscribed in the same manner as a will. [Ed. Note. For other cases, see Wills, Cent. Dig. 459; Dec. Dig. § 181.* For other definitions, see Words and Phrases, vol. 7, pp. 6216-6218.] burden of proving revocation; and, where the jury are left in doubt on the evidence, he has not sustained the burden. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 663; Dec. Dig. § 290.*] Exceptions from Probate Court, Suffolk County. Proceedings by Susan H. Aldrich for the probate of the will of C. T. Aldrich, deceased, in which Henry A. Aldrich appeared as contestant. There was a verdict sustaining the will, rendered on appeal from a decree of the probate court admitting the will to probate, and contestant brings exceptions. Overruled. The case was brought on the following issues: "(1) Was the will purported to be executed by C. T. Aldrich made through the fraud or undue influence of Susan H. Aldrich? (2) Was the instrument now offered for probate revoked or canceled by testator? The jury answered both questions in the negative. There was evidence introduced by Henry A. Aldrich tending to show the exercise of undue influence by Susan H. Aldrich and to show an established hostility on her part against him, commencing prior to the date of her marriage to testator and con-1 BRALEY, J. [1-3] The testator, while he tinuing up to the date of the will, and from did not overlook his son, gave the appellant that time down to the date of testator's only a nominal pecuniary legacy. It was death. There was also evidence offered by contended at the trial that the will was proproponent tending to show a high regard and cured through the undue influence of the exaffection on the part of testator toward his ecutrix, the testator's wife by a second marwife, Susan H. Aldrich, and that the provi- riage, and he offered evidence, which was exsions of the will represented the testator's cluded, that in his presence some 12 years known attitude toward his children, based previous to the execution of the will, upon on relations which had existed toward them, being charged by his mother, the first wife rather than on any undue influence exercis- of the testator, with illicit relations, neither ed by the wife. Proponent, though in court, of the implicated parties denied their guilt. did not testify. On that subject, the court The will undoubtedly is largely beneficial to charged as follows: the widow, and if the jury believed this` evidence a feeling of hostility on her part may have been engendered which if opportunity offered might have induced her to persuade the testator to discriminate unjustly against his son. A wife, however, lawfully may urge her husband to make a will in her favor, and the exceptions do not purport to recite all the evidence. It often happens that no direct proof of undue influence can be produced. It must be established by proof of circumstances. The evidence offered might have been admissible as tending to show the testator's mental status if some foundation had been laid. Shailer v. Bumstead, 99 Mass. 112, 121. But if subsequent expressions of hostility were introduced, which continued to the date of the will, and the testator's death, no evidence appears of efforts on her part to induce him substantially to disinherit the appellant, and to make a will in her favor. The undisputed facts only showed the contents of the will, and that the executrix and principal legatee was the second wife of the testator, who married her in about a year after the death of his first wife and mother of his children. But of themselves these facts did not prove undue influence. Maynard v. Tyler, 168 Mass. 107, 114, 46 N. E. 413. The circumstances of each case are so varied that a rigid or uniform rule cannot be laid down, and how far evidence of this description should be admitted must be left very largely to the discretion of the presiding judge, who has all the evidence before him. The period in the present case seems to have been so remote that the exclusion of the testimony cannot be deemed improper or unfounded. Jenkins v. Weston, 200 Mass. 488, 86 N. E. 955; Howes v. Colburn, 165 Mass. 385, 43 N. E. 125. "Now I am asked to call your attention to the fact that Mrs. Aldrich, who is, I believe, the petitioner for the probate of the will, and who is the person charged with having exercised undue influence, has not taken the stand to testify. It is a principle of law that if one party to a controversy has evidence in his or her possession which would throw light-which would probably throw light-upon the controversy and fails to produce that evidence, or fails to take the stand, or fails to call the witness, an inference may be drawn that if that witness were called or that testimony produced it would not be helpful to the side which that person is supporting. That is a general principle of law. It applies to all parties to a controversy. If there was a witness known to one side who was unknown to the other until the trial, and the existence of that witness was developed during the trial, the fact that that witness had not been called by the person who knew of his existence would furnish a proper instance for the application of that rule. In this case you have to consider, however, that Mrs. Aldrich was known as a witness at the very beginning of this controversy, because the very issue which this respondent makes is that she exercised the undue influence, and this respondent had a right to call her as a witness if he wanted to and examine her himself and ask her all about this undue influence-what the relations were between her and her husband; and it is for you to consider whether under these circumstances the fact that Mrs. Aldrich has not taken the stand should be regarded as a circumstance weighing in her favor or against her, because she was equally well known to both parties when the controversy first started; it was equally within the power of both parties to the controversy to call her. Of course if she had been called by the respondent she would have been an adverse witness, but she could have been cross-examined; that is, she could have been asked questions which, if she were an indifferent witness, could not be asked her." Wm. J. Brown, of Providence, R. I., for contestant. M. M. Taylor, of Worcester (C. B. Perry, of Worcester, on the brief), for re [4] The person alleged to have exercised undue influence, even if a beneficiary, is not an adverse party, and such person may be called as a witness either by the executor or contestant, and the failure of the proponent, although present during the trial, to give evidence in support of the will which she was required to offer for probate, or to deny the accusations of the appellant, did not convert her silence into an inference of fact. to be drawn by the jury, that if she had testified her testimony would have been preju 99 Mass. 127; McConnell v. Wildes, 153 Mass. | raised a presumption of fact, for the consider487, 26 N. E. 1114; Old Colony Trust Co. v. ation of the jury, that with the intention to Wallace, 212 Mass. 335, 98 N. E. 1035. The revoke he had destroyed them. Davis v. Siginstructions requested on this point were ourney, 8 Metc. 487, 488; Pickens v. Davis, properly refused, and those given were un- 134 Mass. 252, 257, 258, 45 Am. Rep. 322; exceptionable in so far as they went, al- Williams v. Williams, 142 Mass. 515, 517, 8 though they well might have gone farther. N. E. 424; 40 Cyc. 1280, 1281, and cases Jones v. Boston & Northern St. Ry., 211 cited. The question whether, under these Mass. 552, 555, 98 N. E. 506. conditions, the declarations of the testator, to the admission of which the appellant excepted, were admissible is one where the cases are far from being uniform. The ground of exclusion is that the declarations are hearsay and nothing more. In re Shelton, 143 N. C. 218, 55 S. E. 705, 10 Ann. Cas. 531, note 535, 536, where many of the authorities are collected and compared ; Throckmorton v. Holt, 180 U. S. 552, 586, 21 Sup. Ct. 474, 45 L. Ed. 663. But we are not prepared to qualify the carefully considered opinion of Mr. Justice Charles Allen, speaking for the court in Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322, which decides that such evidence is admissible to show the intention, state of mind, purpose or plan of the testator, and is in accordance with many well-considered cases. Spencer's Appeal, 77 Conn. 638, 60 Atl. 289; Patterson v. Hickey, 32 Ga. 156; Burge v. Hamilton, 72 Ga. 625; In re Page, 118 Ill. 576, 8 N. E. 852, 59 Am. Rep. 395; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Collagan v. Burns, 57 Me. 449; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Ewing v. McIntyre, 141 Mich. 506, 517, 518, 104 N. W. 787; Lane v. Hill, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591; [5-8] It is declared by the testator in the beginning of the instrument that it is his "last will and testament." But this is not conclusive, and the second issue presented the question whether it had not been revoked or canceled by the testator. A will under R. L. c. 135, § 8, cannot "be revoked except by burning, tearing, canceling or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction, or by some other writing signed, attested and subscribed in the same manner as a will, or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law." It is only the clause, "signed, attested and subscribed in the same manner as a will," upon which the appellant relies. If revocation were shown, he was not required to prove the provisions of a later will which could not be offered for probate. Wallis v. Wallis, 114 Mass. 510. See Tarbell v. Forbes, 177 Mass. 238, 243, 58 N. E. 873; Williams v. Williams, 142 Mass. 515, 8 N. E. 424. It does not seem to have been disputed that subsequent wills were prepared under his direction and duly executed, although one of the witnesses who attested the instruments testified that some of them possibly might have been codicils, but from his recollection he thought they were wills. The making of a new will, if on its face it purports to be the testator's last will, operates to revoke all former wills without words of express revocation, and the intention to revoke and the act of revocation being coincident the statute is satisfied. Laughton v. Atkins, 1 Pick. 535; Brown v. Thorndike, 15 Pick. 388. It is not claimed that any specific provision or clause had been revoked by later wills, but that the entire will had been nullified. While the evidence appears to have been slight, the jury were properly instructed that they could find some of the subsequent instruments described by the witnesses might have been codicils, and, if they so found, what effect, if any, codicils, the contents of which were not shown, should have, either as a modification or revocation of the original will, was left to their determination. The mere intention to revoke and nothing more, as we have said, does not of itself constitute a revocation. [9, 10] But as the later wills were not produced, and neither party claimed that the wills ever had been taken from the testator's possession or were in existence among Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, Ohio St. 323, 25 N. E. 209, 21 Am. St. Rep. 6 Am. St. Rep. 405; Behrens v. Behrens, 47 820; Luis v. Muhrback, 49 Or. 452, 469, 470, 90 Pac. 1002; In re Steinke's Will, 95 Wis. 121, 70 N. W. 61; Boudinot v. Bradford, 2 Dall. 266, 1 L. Ed. 375; In re Fallon, 214 Pa. 584, 63 Atl. 889; Collins v. Fraser, 2 Hagg. Eccl. Rep. 266; Reed v. Harris, 7 Car. & P. 330; Keen v. Keen, L. R. 3 Prob. & Div. 105. The statements of the testator, identifying the earlier will as the one he wanted and which he had requested his counsel to procure, were competent evidence for the consideration of the jury as indicative of his intention or plan to destroy the wills which could not be found, and to revive, or to select, the will propounded as his final will. Davis v. Sigourney, 8 Metc. 487, 488; Pickens v. Davis, 134 Mass. 252, 257, 258, 45 Am. Rep. 322; Williams v. Williams, 142 Mass. 515, 517, 8 N. E. 424; Lane v. Moore, 151 Mass. 87, 89, 90, 23 N. E. 828, 21 Am. St. Rep. 430; 1 Wigmore on Ev. § 112; 3 Wigmore on Ev. § 1737. The requests upon the question of revocation were sufficiently covered by the instructions. [11] The burden of proof rested on the appellant, and if the jury were left in doubt it had not been sustained. Giles v. Giles, 201 Mass. 383, 90 N. E. 595. It was proper to this portion of the case, and the presumptions as to the testator's intention which they might draw from all the evidence, do not appear for the reasons stated to be open to the objections now urged. Exceptions overruled. (215 Mass. 234) Exceptions from Superior Court. Essex County; John C. Crosby, Judge. Suit by Frederick R. Sears and others in the nature of an appeal from the refusal of the assessors of the Town of Nahant to abate the tax assessed upon petitioners. From a ruling, on respondent's motion, disallowing counsel fees in the proceeding in which the petitioners failed to secure the abatement SEARS et al. v. INHABITANTS OF TOWN Sought, respondent excepts. Exceptions over OF NAHANT. (Supreme Judicial Court of Massachusetts. Essex. June 18, 1913.) 1. TAXATION (§ 493*)-PETITION FOR ABATEMENT-EXPENSES"-COUNSEL FEES. Under the statutes authorizing an appeal by a taxpayer from the assessors to the county commissioners, neither the assessors nor the commissioners could allow costs to either party until St. 1882, c. 218, enabling the county commissioners, only in case of an abatement, to make such order relating to the payment of costs as justice might require. St. 1890, c. 127, gave the taxpayer an additional remedy by appeal to the superior court, a trial by the court, and the right to except to the rulings and decisions of the trial judge upon questions of law. Rev. Laws, c. 12, § 81 (now St. 1909, c. 490, pt. 1, § 80), provides that, where a complainant has filed a list of his assets as required, the court may allow him costs in its discretion, and that if no abatement is granted judgment shall be rendered for the town "for its expenses and costs, which shall be taxed by the court." Held, on exceptions by respondent town from the denial of its motion for costs in a proceeding where petitioner was not allowed the abatement sought, that, in view of the nature of the action, the direct antagonism of the parties, the usual course of proceedings in actions at law in reference to counsel fees incurred by either party, the ambiguity of the word "expenses," and the decisions of this court in cases where the word has been interpreted, the word "expenses," although broad enough to include counsel fees, was of varying significance, dependent upon the circumstances in which it was used, and that in such proceeding it was not intended to embrace counsel fees. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 876-883; Dec. Dig. § 493.* For other definitions, see Words and Phrases, vol. 3, pp. 2590-2593; vol. 8, p. 7657.] 2. INDEMNITY (§ 15*)-DAMAGES FEES. COUNSEL In actions of indemnity, brought either where the right to indemnify is implied by law or arises under a contract, reasonable fees incurred in resisting the claim indemnified against may be recovered as part of the damages and expenses. [Ed. Note. For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.*] 3. DAMAGES (§ 42*)-COUNSEL FEES. Where plaintiff, in consequence of the defendant's wrongful conduct, has been put to expense in the employment of counsel, the amount so paid is an element of damages in an action against the defendant arising out of such wrongful conduct. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 89; Dec. Dig. § 42.*] 4. COSTS (§ 172*)-COUNSEL FEES-EQUITY. Courts of equity in certain cases under their general powers may allow counsel fees. [Ed. Note.-For other cases, see Costs, Cent. Dig. 88 665-687; Dec. Dig. § 172.*] ruled, and judgment ordered to be entered for respondent in accordance with the agreement of parties. Tyler, Corneau & Eames, of Boston, for petitioners. Samuel H. Hudson and Philip Nichols, both of Boston, for respondents. HAMMOND, J. In this suit brought in the superior court for the abatement of a tax, no abatement was granted; and the main question is whether counsel fees are to be allowed to the respondent town. The decision depends upon the construction of R. L. c. 12, § 81 (now St. 1909, c. 490, pt. 1, § 80), which so far as material reads as follows: "If, upon a hearing, the court finds that the complainant has complied with all the provisions of law and has paid the tax, it may grant him a reasonable abatement and shall render judgment against the city or town for the amount thereof, and for all charges and interest on the amount of the abatement from the date of the payment of the tax. The court may also, if the complainant has filed a list of his estates as required, allow him costs in its discretion. If no abatement is granted, judgment shall be rendered for the city or town for its expenses and costs, which shall be taxed by the court." If the word "expenses," as used in this statute, includes counsel fees, the question must be answered in the affirmative; otherwise in the negative. Although from early times there always have been provisions for the abatement of taxes (Anc. Ch. pp. 70, 250, 475, 610; St. 1785, c. 50, § 10; Rev. St. c. 7, §§ 37, 38, 42; Gen. St. c. 11, §§ 45-48; Pub. St. c. 11, 8 71), still, until St. 1882, c. 218, neither the assessors nor the county commissioners could allow costs to either party (Lowell v. County Commissioners, 6 Allen, 131). This last statute provides that when an abatement is made the county commissioners may make such order relating to the payment of costs as justice may seem to require, provided, that costs shall not be allowed to one who has failed to file the list required by law. This statute provides for costs only in cases where an abatement is made. There seems to be no statute, even up to the present time which authorizes the county commissioners to make an order as to costs in cases where no abatement is made. [1] The statutes authorizing appeals by the tax payer from the assessors to the county commissioners are still in force and are frequently invoked. By St. 1890, c. 127, an additional remedy was given to the taxpayer by an appeal to the superior court. Here the case is tried by the judge without a jury, and either party may take exceptions to the rulings and decisions of the judge upon questions of law arising upon the trial, in the same manner and with the same effect as in other cases there tried without a jury. The object of the statute seems to have been to give to the tax payer the right at his option to have his case heard by a tribunal likely to be more learned in the law than the county commissioners, and where the questions of law can be more directly and expeditiously raised and settled. Since the passage of this statute he may appeal either to the county commissioners or the superior court at his option. If he appeals to the first, costs at the discretion of the tribunal may be taxed in case an abatement is made, but never if an abatement is refused. If he appeals to the second, then in case the abatement is refused there is to be judgment against him in favor of the city or town for "its expenses and costs to be taxed by the court." There is no trial by jury in either tribunal. The question whether counsel fees are included in this word expenses is a narrow one and yet its solution is attended with some difficulty. As was said by Rugg, C. J., in Burrage v. County of Bristol, 210 Mass. 299, 300, 96 N. E. 719, 720: "The word 'expenses,' although broad enough to include counsel fees, is of varying significance, dependent upon the connection in which it is used." The word seems to have been early used in the statutes concerning trustee process. By St. 1794, c. 65, § 3, a,trustee under certain circumstances was allowed his legal costs, and such further costs as with his legal costs should under all the circumstances of the case be a reasonable compensation to him "for his time and expenses in appearing and defending himself in the suit." This was amended in St. 1830, c. 128, § 2 (passed March 13, 1830), so as to read "an amount sufficient to pay his reasonable counsel fees and other necessary expenses." In Rev. St. c. 109, § 49, the phrase is "his costs for travel and attendance and such further sum as the court shall think reasonable for his counsel fees and other necessary expenses." And substantially in this last form has the provision continued to the present time. In R. L. c. 189, § 67, the phrase is, "costs for travel and term fees, and such further amount for counsel fees and other necessary expenses as the court may allow." It is obvious that if the word expenses as used in St. 1794, included counsel fees,. there was no need of the amendment made by St. 1830, nor of the retention of both terms in the subsequent statutes. St. 1848, c. 222, giving to the Hadley Falls the Connecticut river, provided that the corporation should pay damages suffered by owners of fishing rights. The damages, upon the application by either party, were to be assessed by the county commissioners subject to an appeal to a jury, as in the case of land taken for a highway; "and all expenses accruing under such application to and determination by the county commissioners shall be borne by the Hadley Falls Company." This court, after saying that "we should allow a liberal taxation for all expenditures for plans, surveys," etc., added however these words: "We cannot suppose that the Legislature intended to embrace counsel fees in the above provision, and the claim [for counsel fees] must therefore be disallowed." Marshall Fishing Co. v. Hadley Falls Co., 5 Cush. 602, 605. Pub. St. c. 156, § 35, provided that in contested cases in the probate court or in the Supreme Court of Probate, costs in the discretion of the court could be "awarded to either party to be paid by the other or to either or both parties to be paid out of the estate, as justice and equity may require." In Brown v. Corey, 134 Mass. 249, decided in 1883, it was adjudged that the court had no power to allow counsel fees or other expenses as costs in addition to the taxable costs. The very next year, probably as the result of this decision, the statute was amended by adding after "costs" the word "expenses." St. 1884, c. 131. In Willard v. Lavender, 147 Mass. 15, 16, 16 N. E. 582, 585, it was said by Morton, C. J., that "the purpose of the amendment was to give the courts of probate power, in contested cases, to award to either party costs as between solicitor and client, and the expenses of the suit to be paid by the adverse party, or out of the estate, in the discretion of the court, in analogy to proceedings in equity on bills for instructions by executors or trustees." Under this statute which ever since has been in force it has been the practice, where justice and equity required, to allow as a part of the expenses a moderate sum for counsel fees, based upon the rule stated in Willard v. Lavender. R. L. c. 165, § 44, provides that "the expenses and costs of the inquiry and proceedings for the removal of an attorney shall be paid as in criminal prosecutions. In Burrage v. County of Bristol, ubi supra, it was held that the word "expenses" in this statute includes "counsel fees." In giving the opinion Rugg, C. J., after stating that such a proceeding was a matter of vital interest, proceeds to state the main ground upon which the decision rested in the following language: "These words ['expenses,' 'costs,' etc.] have been in our statutes dealing with this matter since 1836. It is agreed that the practice has been for many years for the counties to pay for professional serv |
