Florence E. Linden prepared a will, but, inasmuch as the beneficiary predeceased her, she died intestate on the fifth day of July 1955. Upon application for distribution the State of New Jersey contended that the deceased left no heirs and those claiming had no rightful claim. This court determined after hearing that the property did not escheat but went by the laws of intestacy to the estate of Cyril J. Greene, deceased. As Greene's executor and sole beneficiary, John H. Devine received decedent's residuary estate. This hearing was contested, and the State did appear through the Attorney General. There was no action started under N.J.S. 2 A:37.
Application is now made for the payment of a counsel fee of $250 to the Attorney General for legal services rendered in the contest of the intestacy hearing.
Inasmuch as there is a fund in court over which the court has jurisdiction, the court in its discretion may make allowance for counsel fees out of such a fund. R.R.
4:55-7(b). State v. Otis Elevator Co. , 12 N.J. 1 (1953). The application for counsel fees made by the Attorney General must be considered in the light of N.J.S.A. 52:17 A -10, which states in part:
"No member of the Department of Law shall receive any compensation, fees or costs in addition to his regular salary for or by reason of any service performed by him for the State or for any political subdivision thereof except by allowance or appropriation by the Legislature, and any additional compensation, fees or costs so payable to or received by any member of the Department of Law, not so allowed or appropriated, shall be paid to the State Treasurer for the use of the State ; * * *." [Emphasis added.]
Although this statute would proscribe payment of any fees to the individual counsel who represented the State in this matter, the statute does provide for payment to the State Treasury of any fees which in the court's discretion it may award to it.
The question then is not whether it is permissible for the court to award counsel fees to the State, but whether the court in its discretion should make such an award.
The court in resolving this problem adopts the policy expressed in In re Katz' Estate , 40 N.J. Super. 103 (Ch. Div. 1956), to the effect that when the Attorney General merely pursues his delegated duty to concern himself with legal affairs affecting the public interest, the public should bear the expense through salary appropriations by the Legislature, and no allowance of fees should be made to the State from funds belonging to a private individual.
This expression of policy in Katz , where the Attorney General was representing a charitable trust, is no less applicable to the instant situation where the Attorney General unsuccessfully contended that the Linden estate was subject to escheat. In Katz the public interest was the charitable nature of the estate, and here the public interest was associated with the possibility of the estate's escheating to the State government for the use of the public.
The fact that the court found that the estate was found not subject to escheat does not alter the nature of the services rendered by the Attorney General as is contended in his brief. At the time the services were performed, the Attorney General was acting on behalf of the interest which the public has in funds which may escheat to its benefit. It is tenuous to argue that the Attorney General's interest is converted from one of a public nature to a private one, depending on the degree of merit of his claims. ...