Defendant requested allowance of counsel fees and costs in this escheat action brought pursuant to the provisions of L. 1946, c. 155, as amended; N.J.S.A. 2:53-15 et seq. , contending there was ample authority for such allowance under both the statute and the rules of court. Plaintiff opposed the application and it was denied. Defendant intends to appeal; this memorandum gives the reasons for the denial.
At common law the doctrine of escheat was associated with real property. It was an incident of tenure and related to the reversionary right of the lord to take for want of a tenant. What was originally an incident of tenure eventually became an incident of sovereignty. In re Melrose Ave. , 234 N.Y. 48, 136 N.E. 235 (Ct. Apps. 1922). It would appear, however, that the doctrine of escheat did not in early times extend to personalty; the state had no commonlaw proprietary interest in abandoned and unclaimed personal property. State v. Standard Oil Co. , 2 N.J. Super. 442, at p. 456; 5 N.J. Super. 460, at p. 472 (Ch. Div. 1949). With the passage of time, the doctrine came to be extended to
such personalty, tangible and intangible. Id. , 5 N.J. 281, at p. 297 (1950).
The United States Supreme Court, on appeal in the Standard Oil case, 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078, said (at pp. 435-6 of 341 U.S.):
"We need not consider whether a state possesses inherent power for such [escheat] legislation as to personalty as the successor to a prerogative of royal sovereignty.
As a broad principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a state, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons. Such property thus escapes seizure by would-be possessors and is used for the general good rather than for the chance enrichment of particular individuals or organizations."
The New Jersey Legislature first asserted the sovereign power to obtain dominion over and dispose of abandoned and unclaimed personal property by the passage of the 1946 law. (N.J.S.A. 2:53-15 et seq.). That act (and its amendments) is complete in itself and sui generis. It sets up a complete procedure. Jurisdiction in escheat actions, originally granted to the old Court of Chancery (L. 1946, c. 155, sec. 4), is now vested in the Chancery Division of the Superior Court (L. 1951, c. 304, sec. 2; N.J.S.A. 2:53-18). Proceedings are instituted, as in this case, by petition in the name of the State, "filed by the Attorney-General or by such attorney or counsellor-at-law as he may designate," N.J.S.A. 2:53-21. This section, and those that follow, detail the procedure.
N.J.S.A. 2:53-23 provides that before depositing the proceeds of escheated personal property turned over to him pursuant to final judgment, the State Treasurer "shall deduct therefrom five per centum" and pay the same to the escheator (appointed pursuant to N.J.S.A. 2:53-19) "as a reward." Further, the court "shall, in its final decree [judgment], fix the fees and expenses of the attorney or counsellor who shall have prosecuted the escheat * * *." The State Treasurer is directed to deduct these fees and
expenses from the moneys received by him or realized from the sale of the personal property.
The Escheat Act makes no similar provision for the payment of fees and expenses of the attorney who defended the action. Nor can such allowance be implied, as defendant contends, from the language of N.J.S.A. 2:53-23 which, after directing the State Treasurer to pay the escheator his "reward," goes on to state that he "shall pay such other fees and costs as the decree [judgment] shall direct." This clause can only refer to such fees and costs as the court is empowered to make under the act. It obviously relates to the paragraph immediately ...