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attorneyappealtrialprobatewillobjection
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Swift v. Hiscock, 344 Mass. 691, 183 N.E.2d 875

Facts

Richard F. Terry died on December 21, 1955, and his will was allowed on January 24, 1956. Frederick G. Hiscock, a business partner of the testator, was bequeathed the bulk of the estate. In 1957, Hiscock objected to the executor's proposed fees of $10,000 and $5,000 for executor and attorney fees, respectively. Despite his objections, Hiscock assented to the final account on October 13, 1960, which included these fees, and later sought to withdraw his assent on July 14, 1961, leading to the appeals.

Richard F. Terry (hereinafter referred to as the testator) died on December 21, 1955, and his will was allowed on January 24, 1956. Frederick G. Hiscock, a business partner of the testator, was bequeathed the bulk of the estate ($100,000 and three parcels of real estate).

Issue

Whether a beneficiary may withdraw assent to an executor's accounting after having voluntarily assented with full knowledge of the facts.

We pass now to the question of whether an assent to an executor's accounting, once voluntarily given and with full knowledge of the facts, may be withdrawn prior to the allowance of the account.

Rule

An assent to an account is tantamount to a stipulation, which may not be disregarded or revoked at will. However, a court may vacate a stipulation if it is deemed improvident or not conducive to justice, and this is a matter within the discretion of the trial judge.

An assent to an account is tantamount to a stipulation. A ‘party may not disregard a stipulation given by him, nor can be revoke or escape from it at his will.’

Analysis

The court found that the probate judge should have allowed Hiscock to withdraw his assent because there was no substantial lapse of time between the assent and the proposed withdrawal, and no party had changed position or would be prejudiced by the withdrawal. The court noted that the fees charged were prima facie excessive given the estate's value, and Hiscock had a meritorious case to contest these charges.

With the foregoing principles in mind, we are of opinion that the judge ought to have permitted the petitioner to withdraw his assent.

Conclusion

The Supreme Judicial Court reversed the decrees of the Probate Court, allowing Hiscock the opportunity to contest the executor's and attorney's fees.

Decrees reversed.

Who won?

Hiscock prevailed in the case because the court determined that he should have been allowed to withdraw his assent to the executor's accounts, given the circumstances surrounding the case.

Hiscock was not informed who the attorney would be. He learned later that it was Mr. Swift's son, William Swift.

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