On appeal from the Superior Court, Chancery Division, to the Appellate Division. Certified to the Supreme Court on motion of that court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. The opinion of the court was delivered by Case, J. Chief Justice Vanderbilt concurring in the result.
[4 NJ Page 336] Farber and wife, the present litigants, signed a contract for the sale of real property acquired by Farber before his marriage. When the time came for closing Mrs. Farber refused to sign the deed. Katz, the vendee, sued in the Superior Court, Chancery Division, for specific performance. There followed a consent order directing the Farbers to execute and deliver the deed and directing Katz to pay into court the unpaid balance of the contract price. Those directions were obeyed. A further command in the order was that "said sum ($21,797.23) shall be received by and deposited with the Clerk of this Court subject to the rules of this court and subject to the respective rights of said defendants therein * * * to the same extent as their rights existed in said real estate at the time of delivery of said deed of conveyance; and that the fund so deposited is to remain in court until deposited (disposed) of by the order of this court upon appropriate application by said defendants or either of them."
This branch of the proceeding was instituted by the filing of a petition by Farber for leave to withdraw from the fund so much of it as belonged to him outright, the remainder -- whatever the court might find should be held to answer the inchoate dower of Mrs. Farber -- to be retained in court. Mrs. Farber came in with an answer and cross-petition asking that so much of the deposit as equaled the value of her inchoate right of dower be paid to her forthwith. She based her application upon an alleged contract said to have been made orally between her and her husband whereby the latter undertook, on the sale of the property to Katz, to devote the proceeds to the purchase of real estate and the erection therein of a home to be owned and occupied by both. Farber denied the contract. The court, after taking proofs, found that the contract had not been proved and dismissed the cross-petition. It also found that it was without present power to value the inchoate right of dower of Mrs. Farber or to make an award to her of counsel fees. Farber was permitted to withdraw the sum of $10,797.23. The balance, $11,000, was impounded in court to insure the payment of appropriate income to Mrs. Farber if and when her dower should become consummate, the income therefrom meanwhile to be paid to the husband.
The wife, appealing, presents four points, of which the first is that the court below erred in holding that the alleged agreement had not been made. We are of the opinion that the status of the proofs quite sustains the finding.
It is next said that Mrs. Farber is presently entitled to receive a portion of the fund. This claim is negatived by our finding on the first point. She has no right in or to the fund except as it represents realty in which she had an inchoate right of dower. Inchoate right of dower in this State is a present fixed and vested valuable interest of a wife in her husband's estate of inheritance in land of which he is seized, subject to divestiture by the death of the wife in the lifetime of the husband. Gerhardt v. Sullivan, 107 N.J. Eq. 374 (Ch. 1930). Mrs. Farber's right of inchoate dower may never become consummate; if it does, the right will end with
her death. R.S. 3:37-1. In this State, in the absence of legislation and without the consent of the parties in interest, a widow has no right to elect, and the court is without power to allow, a lump sum in lieu of dower. Potter v. Watkins, 104 N.J. Eq. 13 (Ch. 1928); Kouvalinka v. Geibel, 40 N.J. Eq. 443 (Ch. 1885). The same principle applies to inchoate dower. This is implicit in Wheeler v. Kirtland, 27 N.J. Eq. 534 (E. & A. 1875), where it was said (italics inserted), "The land is transmuted into money. It assumes a shape where she (the wife) can claim her right without interfering with the public. Equity will secure to her that portion of the award (in condemnation) which represents her inchoate dower. * * * That being so, the parties desire a sum in gross, in preference to the securing of one-third of the principal, to await the event of her surviving her husband." We have no statute pertinent to the facts of the case.
Appellant's third point is that the alleged agreement between her and her husband is not barred by the Statute of Frauds. The proofs were received, and although motion to strike was made they were not, so far as the record discloses, stricken. Inasmuch as the Chancery decision did not and ours does not rest upon that controversy, we find it unnecessary to discuss the moot question.
Finally, it is argued that the court below had the power to award a counsel fee to Mrs. Farber chargeable against the fund. Disposition of this point leads to a study of the subject of allowances in its various aspects.
Counsel fees awarded by order of court are analogous to costs; in fact they are to be classed in the same category, and the rule was that the right to costs in legal proceedings was based, directly or indirectly, on statute. State v. Blake, 36 N.J.L. 442 (E. & A. 1872); Apperson v. Mutual Benefit Life Ins. Co., 38 Id. 388 (Sup. Ct. 1876); Hopper v. Freeholders, 52 Id. 313, 318 (Sup. Ct. 1890); Fitzsimmons v. Bonavita, 77 N.J. Eq. 277 (Ch. 1910). At common law there was no such thing as costs of suit; and no person, whether plaintiff or defendant, was entitled to costs of suit
in any action, real, personal or mixed. Lehigh Valley R.R. Co. v. McFarland, 44 N.J.L. 674 (E. & A. 1882). Special allowances to counsel, except in certain classes of cases, stood on no better footing. When authorized by statute they were usually in cases of equitable cognizance. Cf. c. 158, P.L. 1902, § 91, amended c. 261, P.L. 1910, 1 C.S., p. 445; R.S. 2:29-131, 2:65-31. In Chancery the rule was briefly and clearly stated by Vice-Chancellor Backes as follows: "Allowance of counsel fee rests solely on the statutes, except where trust funds in the control of the court are being administered;" In re Welsh, 93 N.J. Eq. 303 (Ch. 1922). The same Vice-Chancellor, sitting as Vice-Ordinary, had already said: "It required an act of the legislature to empower the Court of Chancery to award counsel fees to a successful complainant (P.L. 1902, p. 540), and another to permit the court to grant such allowance to a successful defendant (P.L. 1910, p. 427);" In re Queen, 82 N.J. Eq. 588 (Prerog. 1913). To like effect, Miller v. Marshall, 115 N.J. Eq. 545 (Ch. 1934). The application of the statutes was not extended beyond their plain language, e.g., McMullin v. Doughty, 68 N.J. Eq. 776 (E. & A. 1905). Allowance of a counsel fee to an unsuccessful litigant was denied, Sparks v. Ross, 82 N.J. Eq. 121 (Ch. 1913), until c. 116, P.L. 1915, § 6 authorized such an award. The award of compensation to counsel for receivers of insolvent corporations was based on former section 85 of the Corporation Act, 2 C.S., p. 1652, now R.S. 14:14-22, Simpson v. Vitaphone Company, 88 N.J. Eq. 430 (Ch. 1917), but it was held that claimants ...