Opinion
05-30-1903
KEENEY v. HENNING.
R. S. Hudspeth, for the motion. C. L. Corbin, opposed.
Bill by Mary Keeney against Theresa Henning for partition and account of rents. On motion of complainant for an allowance of counsel fees. Allowance advised.
For former opinions, see 58 N. J. Eq. 74, 42 Atl. 807, 53 Atl. 460.
R. S. Hudspeth, for the motion. C. L. Corbin, opposed.
PITNEY, V. C. Application for counsel fee is based, first, upon the revision of the partition act (P. L. 1898, p. 663, § 53); and, second, upon the revision of the chancery act (P. L. 1902, p. 540, § 91).
When the suit was commenced there was an infant defendant, George Henning, entitled to the same share of the premises as the complainant, namely, a one-seventh interest. After arriving at maturity he sided with the complainant, and was represented by her counsel.
The defendant, Mrs. Henning, was entitled as dowress in the whole premises, and was also entitled in fee by conveyance from five of the seven heirs at law. At or after the filing of the bill she conveyed her interest (five-sevenths) in the premises, without consideration, to her son-in-law. He seems to have promoted the defense, which was almost wholly without merit. Defendant had been administratrix of her husband, and also orphans' court guardian of the complainant; and in these capacities she had received full commissions on his personal estate, and double commissions on the share therein of the complainant. She was also allowed, first and last, full commissions on all the rents and profits collected by her. Her counsel was also allowed $100 for making up for the master her account of rents received.
Counsel for complainant contends, and cites authorities in favor of his contention, that the word "expenses," found in the forty-fourth section of the partition act, includes counsel fee, and urges that it would be fair to allow counsel fee in this case out of the proceeds of all the land, whereby one-seventh would fall upon George Henning, the one-time infant defendant, who obtains substantial benefit from the proceedings. Without considering the merit of that position, I think the case comes clearly within the ninety-first section of the chancery act, and think the complainant in this case should be allowed a counsel fee, to be recovered against the defendant, Theresa, in personam. I fix the counsel fee at $250.
The complainants are entitled to recover against the defendant, Theresa, in person, the costs of the cause, including the counsel fee, up to the decree for sale. The costs of the decree for sale and of the sale will come out of the proceeds of the sale. Such is the character of the decree I advised in Thorp v. Smith, 63 N. J. Eq., at page 93, 51 Atl. 437, and that decree was affirmed by the Court of Errors and Appeals. 54 Atl. 412. With regard to the counsel fee, the amount thereof will be left blank in the decree which I shall advise, and this memorandum will be sent to the chancellor, and either party may move him, on notice to the other, to vary the amount, if he shall be so advised.