82 N.J. Eq. 588 | N.J. Super. Ct. App. Div. | 1914
The appeal in this case was dismissed, with costs, against the appellant. The respondent now moves for a counsel fee, and relies upon section 196 of the Orphans Court act (Comp. Stat. p. 3884), which reads:
“In all litigated suits in the orphans court the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party.”
and cites in support of his motion the case of Bioren v. Nesler, 76 N. J. Eq. (6 Buch.) 576, and Kayhart v. Whitehead, 77 N. J. Eq. (7 Buch.) 12
The practice in such cases has not its origin in legislation. Whitenack v. Stryker (A. D. 1838), 2 N. J. Eq. (1 Gr.) 8, although it is saarctioned by statute. P. L. 1855 p. 342; Rev. 1874 p. 550; Comp. Stat. p. 3885. Where the services of counsel are for the advantage of all concerned, it is the common practice to compensate him out of the funds of the estate. On appeal from a decree upon exceptions to executor’s account. Munn v. Munn, 20 N. J. Eq. (5 C. E. Gr.) 472. On appeal from an order of distribution. Smith v. McDonald, 69 N. J. Eq. (3 Robb.) 765; 71 N. J. Eq. (1 Buch.) 261. By virtue of section 197 of the Orphans Court act (Comp. Stat. p. 3885) the court may, in litigation of this kind only, order the losing party to pay a counsel fee.
The proceeding in the. orphans court was a “litigated suit” within the meaning of the statute, and counsel should have applied, and perhaps may now apply to that court, to exercise its discretion.
The motion will be denied.