of Bergen county, that tribunal admitted the will to probate, from which adjudication an appeal was taken to this court, which, after hearing, affirmed the judgment of the orphans' court and denied to counsel for the appellants any allowance of counsel fees on the appeal.

After appeal taken from the decree admitting the will to probate, and while that appeal was pending in this court, counsel for the caveator gave notice of an application to the orphans' court for an allowance of counsel fees and expenses to be paid out of the estate of the testator. Opposition to this award was made by counsel for the proponents on the ground that the orphans' court, by reason of the pendency of the appeal, was without jurisdiction to make any such allowance, and that court having heard the application, being of opinion that it was not divested of its authority to make such allowance by reason of the appeal, and being satisfied that the caveator had reasonable cause for contesting the validity of the will, an order was made awarding a fee of $2,500 to be paid to counsel for the caveator out of the estate of the testator. Appeal is now taken to this court from that order and allowance. And the executors of the estate urge here that the order for allowance should be reversed (1) because the orphans' court was without jurisdiction to entertain the . application by reason of the pendency of the appeal from the probate of the will, and (2) because there was no reasonable cause for contesting the validity of the will.

in our state bearing upon the question. Vice Ordinary Reed, in Hill's Case, 55 N. J. Eq. 764, held at page 767, 37 Atl. 952, that the effect of an appeal from the orphans' to the prerogative court is to transfer the cause of action into the appellate tribunal; but, from what follows, that assertion is qualified by a showing that jurisdiction of the questions involved in the adjudication and which are the subject of the appeal, and only those, are removed into the appellate court, and as to them the hands of the court below are stayed pending the appeal. In an earlier case, Brown v. Ryder, 42 N. J. Eq. 357, 7 Atl. 568, Chancellor Runyon, as ordinary, held that, while the powers and functions of an administrator pendente lite are supended by the admission of a will to probate and the qualification of the executor, they revive on appeal from the decree of probate, and continue until the determination of the appeal. This would be impossible if the appeal removed the entire record and stayed all proceedings not involved, as well as those involved, in the appeal. In the later case of Davenport v. Davenport, 68 N. J. Eq. 611, 60 Atl. 379, 6 Ann. Cas. 261, the Court of Errors and Appeals held, 68 N. J. Eq. at page 612, 60 Atl. at page 379, 6 Ann. Cas. 261, that the power of appointing an administrator pendente lite exists where a contest over the validity of the will is being carried on in another court, citing Brown v. Ryder, supra. Kayhart v. Whitehead, 77 N. J. Eq. 12, 76 Atl. 241, precipitated a contest on a will filed by an executor, who [1] First. As to the jurisdiction of the was also a devisee and legatee, against other orphans' court: In Bull v. International legatees to recover or retain from their legaPower Co., 84 N. J. Eq. 209, 93 Atl. 86, I cies, the expenses of the probate of a testaheld that an appeal from the Court of Chan- tor's will, including counsel fees awarded cery to the Court of Errors and Appeals, while by the orphans' court. There had been an it removes the cause and the potential record, appeal in the case to the prerogative court. does not actually remove the physical record; Vice Chancellor Emery held that the orthat is, the papers constituting the record phans' court may include counsel fees as remain in the Court of Chancery, whose part of the costs and expenses of the projurisdiction over it pending appeal is ousted bate of a will which is contested, and he only to the extent of preventing the decree | observed, at the bottom of page 16 of 77 N. in chancery from destroying or impairing J. Eq., at page 241 of 76 Atl., that the effect the subject of the appeal, or being in any degree used for that purpose. This, I take it, is applicable as well to appeal from the orphans' court to the prerogative court. My observations upon the question in the Bull Case (to be found at page 217 et. seq. of 84 N. J. Eq., at page 86 of 93 Atl., citing authorities in this and other states), give the reasons for the doctrine. Rule 64 of the prerogative court expressly requires that a transcript of the proceedings before the orphans' court shall be authenticated and returned to this court by the appellant. In fact, such a transcript is before me on this appeal. The physical record remains in the orphans' court, where it properly belongs. The doctrine just enunciated is not in conflict, but in consonance, with the decisions

of the appeal was to stay the probate and issuing of letters testamentary thereon so long as the appeal continued, and to that extent the appeal was effective against the probate. This case was affirmed in the Court of Errors and Appeals on the opinion of the vice chancellor, Id., 78 N. J. Eq. 580, 81 Atl. 1133. These authorities make it clear that an appeal from the orphans' to the prerogative court removes only the particular question adjudicated and which is appealed from, leaving all other matters in the trial court, subject to appropriate action and proceedings.

[2] The question of the allowance of expenses, including counsel fees, is a thing apart from the question involved in an appeal from a decree admitting a will to

(111 A.)

[3-5] Second. As to the propriety of the allowance made: The statute provides, Orphans' Court Act, P. L. 1898, p. 789, § 197; 3 Comp. Stat. p. 3885, as follows:

probate. And as the orphans' court has | bounty may well make a contest against power to make such an award, even where the probate of his will in the orphans' court probate is denied, such an award, if made, for the purpose of obtaining the judgment cannot be said in any wise to destroy or of that tribunal thereon, and, though unimpair the subject of the appeal. I conclude, successful, be allowed expenses, including therefore, that the orphans' court had juris- counsel fees, if in the judgment of that court diction to entertain the application. there was reasonable ground of contest; but, having taken the judgment of the court of first instance upon the question, an appeal to the prerogative court stands in a somewhat different position, and costs and counsel fees out of the estate will be denied in this court, if, in its opinion, the case made in the orphans' court demonstrated there was no reasonable ground for the appeal to this court. I think awards of orphans' court in this class of cases ought not to be overthrown, unless it quite conclusively appears that the contest below developed no reasonable ground for further litigation, or that the allowance was excessive (in which case it should be reduced), and, where the decision of the orphans' court that the unavailing contest was reasonable can be upheld, it should be. No hard and fast rule in the nature of things can be laid down in those cases; each must very largely depend upon its own facts and circumstances, and when the judge of the orphans' court, who tried the cause and saw and heard the witnesses, concludes that there was reasonable ground of contest, he should be upheld, if he may be, without doing violence to the case as it appears upon the record. In this case I am unwilling to say that the judge of the orphans' court erred in making the allowance in question, and the order appealed

"In causes respecting the probate of a will, or of a codicil to a will, if probate be refused, the court may order the costs and expenses of the litigation to be paid by the person or persons propounding the will or codicil, or to be paid out of the estate of the deceased; but, if probate be granted, the court shall order the party or parties contesting such will or codicil to pay the costs and expenses of the litigation, unless it shall appear to the court that the person or persons contesting such will or codicil had reasonable cause for contesting the validity of the same, or shall not have offered on the trial or hearing any evidence, other than the subscribing witnesses to the will or codicil; and in case it shall appear to the court that the person or persons contesting such will or codicil had reasonable cause for contesting the validity thereof, the

court may order that the cost and expenses of the litigation, as well on the part of such contestant or contestants as on the part of the person or persons propounding such will or codicil for probate, be paid out of the estate of the deceased."

This section has been construed to authorize the inclusion of counsel fees as part of the expenses allowed to be awarded by that section. Kayhart v. Whitehead, supra. In Bioren v. Nesler, 76 N. J. Eq. 576, 74 Atl. 791, it was pointed out, 76 N. J. Eq. at page 579, 74 Atl. at page 791, that this practice has the express sanction of the Court of Errors and Appeals.

from will therefore be affirmed.

The decision of this court in Hollinger v. Syms, 37 N. J. Eq. 221, affirmed 37 N. J. Eq. 628, is in point. Runyon, Ordinary, at page 238, observed that the orphans' court properly adjudged that the caveator had reasonable cause for contesting the validity of the will, and therefore awarded him payment of costs and expenses out of the estate, and that on the same ground he was equally entitled to payment of his reasonable counsel fees, but adjudged that he would be allowed no counsel fee in this court.

In the case before me the will was admitted to probate after contest. Section 197 of the Orphans' Court Act provides, as shown above, that if the probate be granted and it shall appear to the court that the person contesting had reasonable cause therefor, the court may order that the costs and expenses of the litigation, including those of the con- One provision of the statute is that the testant, be paid out of the estate of the de- contesting party shall pay the costs and ceased. This does not confide the power of expenses of the litigation unless he offers award to the mere discretion of the court, no evidence other than that of the subscriband, if it did, that would doubtless compre- ing witnesses. Therefore a party who would hend a sound judicial discretion, which is inherit in case of intestacy may, in any appealable. The statute, however, makes event, examine the subscribing witnesses the award dependent upon reasonable ground without peril of costs being visited upon him; existing for the contest; and the orphans' but, where he goes on with an affirmative court has adjudged in this case that such contest against the validity of the will, he ground existed. While on appeal I affirm- shall not have costs out of the estate unless ed the decree of probate and denied an the trial court concludes that there was allowance to the caveator-appellant, and reasonable ground for the contest. Now, took occasion to remark that a person who as seen, although the contest may be reawould be the natural object of a testator's sonable in that court, yet, if the losing party

is not satisfied with its judgment and appeals to this court, as is his right, this court will determine whether or not the contest here was reasonable, quite irrespective of the decision of the same question in the court below as to the contest there.

The order under review will be affirmed, with costs in this court, to be paid out of the estate, including a reasonable counsel fee for services in this court on this appeal, to be fixed on notice.

BERGEN TURNPIKE CO. et al. v. NORTH
BERGEN TP. et al.

confirmed by the state board of taxes and assessment. The allegation of the prosecutor is that it has no property of any value in the township, which is subject to be taxed. The record shows the Bergen Turnpike Company was incorporated by an act of the Legislature in 1802. P. L. 1802, p. 172. That act authorized the company to maintain a turnpike road, for the use of which it might charge tolls thereon from Hackensack to Hoboken, in the county of Bergen. When the county of Hudson was created in 1840 a portion of the turnpike road was within Hudson county. Several supplements have been passed to the original act. P. L. 1858, p. 213, authorizes and empowers the company to lay down upon its road or any part thereof such track or tracks of iron rails as it may deem necessary. P. L. 1869, p. 610, authorizes the company to transfer and convey a part of the turnpike road. Page 1307. The company may sell and convey or surrender all or any part of the road not already disposed of. P. L. 1875, p. 54. It may lay tracks in Hackensack, etc. The record further shows that it is no longer in fact a turnpike or toll road. On November 1, 1915, that portion lying within the county of Bergen was conveyed to the board of 13- chosen freeholders of that county under the statute. That part thereby became a free public road. The portion in Hudson county was abandoned for the collection of tolls more than 25 years ago. Since the abandonment no revenue has been derived from the

(Supreme Court of New Jersey. Nov. 24, 1920.)

(Syllabus by the Court.)

1. Taxation 79-Turnpike company held to have no taxable property within township.

The Bergen Turnpike Company in the year 1918 had no property of any value in the township of North Bergen which was subject to be .taxed. For the facts which lead to this result, see the body of the opinion.

2. Easements 30(1,3)-Franchises

Easement may be lost by nonuser for 20 years; franchise may be lost by nonuser; easement may be abandoned by act indicating intention to do so.

An easement may be lost by nonuser in 20 years, and even in less time if it is affected by positive acts of invasion. A franchise may be lost in the same way; nonuser being one of the common grounds assigned as a cause of forfeiture. An easement may be abandone by an act evidencing an intention to do so. Abandonment is made up of two elements. act and intention.

Certiorari by the Bergen Turnpike Company, lessor, and others against the Township of North Bergen and others, to review an assessment for taxes by the township assessor, confirmed by the state board of taxes and assessment. Writ set aside, and tax canceled.

Argued November term, 1920, before SWAYZE, PARKER, and BLACK, JJ.

Frank Bergen and E. A. Armstrong, both of Newark, for prosecutors.

road. The act of abandonment as a toll road by the turnpike company has been such that it could not, if it would, restore the tollhouse and collect tolls legally, even if it were possible physically. No gates could be erected, so as to make the collection of tolls either possible or effective, on account of the construction of cross streets and highways in the township. The attorneys on behalf of the prosecutors by a writing filed with the clerk of this court disclaim any rights by reason of the authority granted to lay down upon its road iron rails under P. L. 1858, p. 213; nothing ever having been done under that supplement to the charter. One of the prosecutors, the Public Service Railway Company, operates thereon a street railway. It is taxed the same as on other highways. It pays the state franchise tax to the township. The road is in all respects the same as any other highway. The turn

Francis H. McCauley, of Town of Union, pike road is treated and used by the public for defendants.

BLACK, J. [1] The writ of certiorari in this case draws under review an assessment for taxes of $61,450 made by the assessor of North Bergen township, in the county of Hudson, against the Bergen Turnpike Company for the year 1918. The assessment was

at large and by the public authorities as a public road.

[2] The proofs further show that the turnpike road has no value as property to the turnpike company. One portion has already been conveyed away under the statute, and the company by sworn witnesses says it is ready to convey the part in Hudson county

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

Certiorari by the Van Vlaanderen Machine
Company against David Fox, trading as the
Savoy Silk Mills, to review an adverse judg-
ment in summary proceedings to dispossess

a tenant. Writ dismissed.
Argued

before

to the freeholders of that county without Certiorari to District Court of Paterson. consideration. The Supreme Court of the United States, in the case of Given V. Wright, 117 U. S. 648, 6 Sup. Ct. 907, 29 L. Ed. 1021, said that an easement may be lost by nonuser in 20 years, and even in a less time if it is affected by positive acts of invasion. A franchise may be lost in the same way; nonuser being one of the common grounds assigned as a cause of forfeiture. An easement may be abandoned by an act evidencing an intention to do so. 14 Cyc. p. 388; 19 Corp. Juris, p. 941; 1 R. C. L. p. 4. Abandonment is made up of two elements, act and intention. 1 Corp. Juris, p. 6. The complete discontinuance of the collection of tolls is some evidence of a surrender of the road as a toll road, and the use by the public thereby makes it a public road in fact. This court held in reference to this road that in 1896 there was no statutory authority that authorized the assessor of a municipality to tax. the section of a turnpike road within the municipality as so much real estate. Bergen County Turnpike Co. v. Haas, 61 N. J. Law, 174, 39 Atl. 654. The Court of Errors and Appeals held the interest in the soil of a highway over which a trolley passes could not be taxed by the local assessors. Mayor, etc., of Newark v. State Board of Taxation, 67 N. J. Law, 246, 51 Atl. 67, reversing 66 N. J. Law, 466, 49 Atl. 525, so the act (P. L. 1918, p. 852, § 203 [14]), which is not applicable to this assessment, provides for an exemption from taxation: "The turnpike road of any turnpike company used by the public without the payment of tolls." Our conclusion is the prosecutor's point is well made; the turnpike company had no property of any value in the township of North Bergen for the year 1918 which was subject to taxation. The assessment brought up by this writ is set aside, and the tax is canceled.

November term, 1920, SWAYZE, PARKER, and BLACK, JJ. Addison P. Rosenkrans, of Paterson, for prosecutor.

William I. Lewis, of Paterson, for respondent.

VAN VLAANDEREN MACH. CO. v. FOX. (Supreme Court of New Jersey. Nov. 15, 1920.)

(Syllabus by the Court.) 1. Landlord and tenant 315(1), 316-Landlord cannot remove summary proceedings by appeal or certiorari after adverse judgment.

Summary proceedings to dispossess a tenant cannot be removed by the landlord after judgment against him by appeal or certiorari. 2. Landlord and tenant 116(2)-Notice to quit when necessary must be served as the statute directs.

Notice to quit when necessary in order to terminate a tenancy must be served as the statute directs, and cannot be served by mail.

SWAYZE, J. There are two insuperable objections in the way of the prosecutor: [1] 1. The proceeding is a summary proceeding by a landlord to dispossess a tenant. The District Court Act, like the Landlord and Tenant Act, forbids an appeal or removal by certiorari. C. S. 1990, § 113; C. S. 3074, § 18g. The prohibition is absolute and forbids appeal or removal as well by landlord as by tenant. The tenant is protected by his right to bring an action of trespass and to recover his damages. The landlord, needs no review, since there is no estoppel by a judgment against him (McWilliams v. King and Phillips, 32 N. J. Law, 21, 28; Chamberlain v. Hopper, 34 N. J. Law, 220, 223, 224), and he may immediately bring new proceedings. It is true there may be a certiorari where the district court or justice of the peace is without jurisdiction, but the landlord cannot successfully maintain that position, since, if there was no jurisdiction, the proceedings were rightly dismissed and the judgment must be affirmed.

[2] 2. There is a more fundamental difficulty. The proceeding is against a tenant from year to year who holds over after his term has expired. Notice to quit is necessary. The landlord, of course, recognized this and attempted to give the tenant notice to quit. What he in fact did is thus stated in the affidavit on which the proceeding is based:

requiring

"Claimant caused a notice defendant to quit and deliver up possession of the said premises on the 1st day of May, 1920, to be mailed to the defendant by registered mail by depositing the same in a sealed wrapper addressed to said Savoy Silk Mills, 2 Broadway, Van Vlaanderen Mill, Paterson, N. J., with office, and that a registry return receipt dated postage prepaid, in the Paterson, N. J., post December 1, 1919, signed by said Savoy Silk Mills, was duly returned to claimant by the postmaster of said city of Paterson on said 1st day of December, 1919."

The case in this respect is controlled by the Landlord and Tenant Act, and not by the District Court Act. Jonas Glass Co. v. Ross, 69 N. J. Law, 157, 53 Atl. 675. The proper service of notice to quit is necessary to ter

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

For the reasons stated, the writ is dismissed, with costs.

STATE v. MARRINER.

(Court of Errors and Appeals of New Jersey. Oct. 18, 1920.)

minate the tenancy, and it is only when the | Silk Mills," a mere trade-name. The case tenancy has been terminated that proceed- does not disclose who in fact received the ings to dispossess can be had in the district notice nor whether he was authorized to recourt. So far as the District Court Act at- ceive it in behalf of Fox. tempts to regulate the tenancy itself, it is unconstitutional, because that object is not expressed in the title. We must therefore look to the Landlord and Tenant Act to determine whether the notice was properly served. That statute regulates the manner of service and does away with whatever doubt might have existed before. It requires either personal service upon the tenant or person in possession by giving him a copy or leaving a copy at his usual place of abode with some member of his family above the age of 14 years, or where for any reason such service cannot be had by affixing a copy of the notice to the door of any dwelling on the demised premises occupied by the tenant. The provision in the District Court Act as amended just before these proceedings were begun is substantially the same. P. L. 1920, 478. The landlord did not comply with the statute and has failed to determine the ten

ancy, so that, at least as far as the affidavit shows, the merits of the case are with the tenant. It may be well to add that the letter seems to have been acknowledged by "Savoy

Error to Supreme Court.

Bertram Marriner was convicted of atrocious assault and battery, and, the judgment being affirmed by the Supreme Court (93 N. J. Law, 273, 108 Atl. 306), defendant brings error. Affirmed.

Ward Kremer, of Asbury Park, for plaintiff in error.

Charles F. Sexton, of Long Branch, for the State.

herein should be affirmed for the reasons exPER CURIAM. The judgment under review pressed in the opinion delivered by the Chief Justice in the Supreme Court, 93 N. J. Law, 273, 108 Atl. 306.