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10/12/77 ALFRED E. SMITH v. ROBERT G. SMITH &

October 12, 1977

ALFRED E. SMITH, ADMINISTRATOR,
v.
ROBERT G. SMITH & OTHERS.



These are cross appeals from a decree entered February 1, 1974, which allowed the first and final account of the administrator of the estate of Anna E. Haley following an amendment of that account by the court which reduced the amount asked by the administrator for counsel fees. We have before us a report of the material facts and a transcript of the evidence. 1. The administrator's appeal is limited to a claim that the Judge erred in reducing the item for counsel fees. No error or abuse of discretion in reducing the claimed counsel fee has been demonstrated. Old Colony Trust Co. v. Third Universalist Soc., 285 Mass. 146, 151 (1934). Miller v. Miller, 339 Mass. 262, 265 (1959). 2. The single item concerned in the contestants' cross appeal is not properly before us, as the issue was not raised below and, in fact, was expressly waived by the contestants at the hearing on the allowance of the account. Milton v. Civil Serv. Commn. 365 Mass. 368, 379 (1974). First Fed. Sav. & Loan Assn. v. Merrimack Valley Natl. Bank, ante, 320, 323-324 (1977).

Decree affirmed.

19771012

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