[21 NJSuper Page 61] This proceeding for construction of the will of Julius S. Rippel, deceased, was disposed of by an opinion filed in the cause, reported in 19 N.J. Super. 424, which states the facts. The present application is made by all parties for allowance of counsel fees to be paid by the
estate of the decedent. Counsel for the defendant executors and trustees argues that there is a fund in court from which, in the discretion of the court, an allowance of counsel fees may properly be made, and applies for an allowance for the successful defense of the proceeding, but he opposes allowances to the plaintiff and to the other defendants.
Rule 3:54-7(b) has been the subject of consideration by the Supreme Court in several recent cases: Katz v. Farber , 4 N.J. 333 (1950); Milberg v. Seaboard Trust Co. , 7 N.J. 236 (1951); Driscoll v. Burlington-Bristol Bridge Co. , 8 N.J. 433 (1952); In re Koretzky , 8 N.J. 506 (1952); Haines v. Burlington-County Bridge Comm. , 8 N.J. 539 (1952). The rule provides that:
"No fee for legal services shall be allowed in the taxed costs or otherwise, except: * * * (b) or out of a fund in court. The court in its discretion may make an allowance out of such a fund, but no allowance shall be made as to issues triable of right by a jury."
The established principle is that:
"It is not necessary that the fund be actually and physically in the possession of the court, or in the hands of the clerk of the court, or a receiver, or a trustee. It is sufficient if, as a result of the litigation, the fund is brought under the control of the court. An illustration of this is a suit to construe a will or a trust agreement. In such suits it is common practice to award counsel fees out of the decedent's estate or the trust fund, neither of which is in court, but is the subject matter of the litigation and for that reason under the control of the court." Cintas v. American Car & Foundry Co. , 133 N.J. Eq. 301 (Ch. 1943), affirmed 135 N.J. Eq. 305 (E. & A. 1944).
There is a "fund in court" where the court has jurisdiction or control over the estate or trust funds. In re Welsh , 93 N.J. Eq. 303 (Ch. 1922); In re Fisher , 115 N.J. Eq. 329 (E. & A. 1933); Stetser v. American Stores Co. , 125 N.J.L. 275 (E. & A. 1940); Clements v. Clements , 129 N.J. Eq. 350 (1941). Nevertheless, Chief Justice Vanderbilt in Driscoll v. Burlington County Bridge Comm., supra , stated that an unwarranted extension of Rule 3:54-7(b) would
permit awards of counsel fees in a vast number of cases to which it was never intended that the rule should apply.
In support of the instant application, it is pointed out that at the institution of this proceeding when a temporary restraint against the incorporation of the "Fannie E. Rippel Foundation" was issued, the order of Judge Stein entered November 21, 1951, embodied an assumption of jurisdiction by this court over the administration of the estate. However, the fact that property is under the control of the court through the issuance of temporary restraints does not of itself create a "fund in court" out of which counsel fees may be allowed. Haines v. Burlington County Bridge Comm., supra.
Concededly, this proceeding is for the construction of a provision of decedent's will. The practice of allowances on the construction of wills remains as heretofore, Katz v. Farber, supra , but the mere fact that a proceeding is for the construction of a will does not without more mean that counsel fees may be imposed upon the estate.
The question is whether under the existing facts the court is empowered to make allowances; and if so, whether the discretion should be exercised in favor of all applicants. "The exercise of discretion implies conscientious judgment, not arbitrary action. Carlo v. Okonite-Callender Cable Co. , 3 N.J. 253, 262-3 (1949)." In re Koretzky, supra. The discretion is, of course, circumscribed by prior decisions, an examination of which discloses that an allowance may not be made except: (1) where the proceeding to construe the will or trust instrument is brought by the executor or trustee or beneficiary; and (2) there is some reasonable doubt or obscurity in the meaning of the instrument. In such instances, the court may make reasonable allowances for counsel fees to the plaintiff and to proper parties defendant. Attorney-General v. Moore's Executors , 19 N.J. Eq. 503 (E. & A. 1868); Jacobus' ...