Harris, J.
George W. Garrett, the first husband of complainant died, leaving a will whereby she was appointed Executrix. His real estate was estimated to be worth $3,500 00, and his per[631]*631sonal estate consisting of slaves, stock of cattle, etc., f>4,-800 00. He died leaving a widow and eight minor children, and placed by the will the whole property, to be disposed of by her at her pleasure, during her widowhood, charged however with the education and maintenance of his children by her, and, upon their attaining their majority or marrying, they were to. draw out their shares. The will further provided, that if the said Julia Ann married, she was restricted to a life estate in this property of one-third, remainder to his children by her. Subsequent to the death of testator, in the year 1854, she intermarried with defendant, Wm, Ainsworth, having previously to said intermarriage entered into articles of agreement, in reference to the property she would be entitled to under the will of Garrett, which articles are now the subject of controversy under the bill pending at her instance, but into the merits of which, it is unnecessary for us to enter for the determination of the matters before us. Living unhappily with defendant after their marriage, and having a child by him, she instituted suit for a total divorce’ in 1858, on the grounds of cruelty, etc. This suit is'still pending. The bill above mentioned to reform the marriage articles, alledging fraud in Ainsworth in drawing' them and procuring her assent to them, and praying an injunction to restrain said’defendant from disposing of, or mortgaging the property brought into the marriage relation, and also, for an order placing the property in the hands of a Receiver, with direction that he should apply the income to the maintenance of her children and herself, was filed after her suit for divorce.
It does mot appear from the record that, upon her marriage with Ainsworth, the property in her hands as executrix, was divided, or since. Her share, fixed by her last marriage and limited to a third for her life, remains mixed up as far as we can percieve, with the property of her children by Garrett. Nor are we enabled to determine whether the whole estate of Garrett, remaining undisposed of by her, went into the hands of the Receiver appointed, or not, or only her life estate in one-third.
[632]*632From causes to which it is unnecessary to advert, neither the divorce suit, nor the bill, has been tried; both are still pending. Interlocutory orders appear to have been made, but as to their regularity or propriety, we have nothing to. say, as no error has been assigned in reference to them. In 1868, the defendant moved the Court to make an order, directing the Receiver, in whose hands the property had been placed, to pay over to him a monthly allowance thereform for his support and maintenance. This application was vigorously resisted by Mrs. Ainsworth, on various grounds, presented in writing, amongst which, was an allegation thatAinsworth could support himself, and that he had individual property of his own sufficient for that purpose; and further, that all the estate in the hands of the Receiver, was barely sufficient to support herself and children, and prayed that a jury might be empannelled to enquire into the facts.
It does not appear that the Judge examined any witnesses as to the condition of the property, its income, or made any inquiries as to the amount necessary to be applied in that quarter, of the state of the actual wants of Mrs. Ainsworth and children; but it does appear that he refused to permit the issue made by Mrs. Ainsworth, by her written objections' to the written application of Ainsworth, to be tried by a jury, as was urged upon him by her counsel; and, it also appears that he did not hear testimony himself, in open court, touching the propriety of making any allowance to Ainsworth, but passed an order without due enquiries, directing 'the Receiver to pay out of the income in his hands, for the support of Ainsworth, $15 00 monthly, until the further order, of the Court.
The record discloses the fact, that the Receiver had in his hands $396 42, out of which, he claimed that he was entitled to $300 00 for commissions and services connected with the managment of the property in his hands. If this officer of the Court was justly entitled to the sum charged by him, (into which claim the Court ought to have required a thorough investigation,) the small siim of $96 42 only was subject, at the time, to appropriation — to whom ?
[633]*633In the face of this claim of the Receiver, which does not seem to have been contested by any body, the balance left in his hands within the fraction of a few dollars, is by a dash of the Judicial pen, “sic volo — sic jubeo,”>directed to'be paid to the support of Ainsworth, (presuming the order to stand for six months or, from term to term,) leaving the sum of $6 42 for Mrs. Ainsworth, and her house full of children!!!
Let the application be looked at in another view:
The whole property of Garrett was estimated before the war, at $8,300 00; no deduction being made for emancipation of the slaves, loss of stock, provisions or corn, or other casualties, the result of the, war. Her share, under the will, was a life estate of one-third, say $2,760 00. Having no data by which the income of this share can be accurately ascertained, I will assume it, (and it is a liberal estimate,) to equal the annual interest of the latter sum, say $193 64. If this entire sum was applied to her use, and that of her child by Ainsworth, can any one think that enough for food, clothing and education? Yet out of this one-third product as interest, (and there is no other property brought by her into the marriage relation than the life estate in it,) we have the extraordinary, fact of an allowance to Ainsworth, of $15 00 per month, or $180 00 per annum, leaving $13 64 out of the whole annual interest, for the maintenance of Mrs. Ainsworth and child.
A calculation made in almost any way, having direct reference to either income or interest, arising from the share she was entitled to under her first husband’s will, demonstrates beyond all dispute, that the exercise of Judicial power, in making the allowance to Ainsworth,.was not characterized by sound discretion.
The wife should have been, from all the considerations involved, the first object of judicial care. ■ She-was a suitor for divorce, and prima facie by her bill, sworn to, she was an injured person. The injunction had, at her instance against the husband, still was held over him; the order to the Receiver to pay her alimony pendente lite, and to provide for conducting the litigation, was still of force.
[634]*634That the injunction was within the control of the Court, to modify or remove, is undeniable; but it seems an anomolous proceeding, without precedent, as far as we are advised, by an order on the income in the hands of the Eeceiver, in behalf of the husband, to rescind, virtually, and almost entirely, the alimony allowed her, for which end, chiefly, the property had been placed in the custody of a Eeceiver — a meagre provision, at most — in lieu of the clear, legal right she had to an adequate support out of the labor and property of defendant. ,.
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Harris, J.
George W. Garrett, the first husband of complainant died, leaving a will whereby she was appointed Executrix. His real estate was estimated to be worth $3,500 00, and his per[631]*631sonal estate consisting of slaves, stock of cattle, etc., f>4,-800 00. He died leaving a widow and eight minor children, and placed by the will the whole property, to be disposed of by her at her pleasure, during her widowhood, charged however with the education and maintenance of his children by her, and, upon their attaining their majority or marrying, they were to. draw out their shares. The will further provided, that if the said Julia Ann married, she was restricted to a life estate in this property of one-third, remainder to his children by her. Subsequent to the death of testator, in the year 1854, she intermarried with defendant, Wm, Ainsworth, having previously to said intermarriage entered into articles of agreement, in reference to the property she would be entitled to under the will of Garrett, which articles are now the subject of controversy under the bill pending at her instance, but into the merits of which, it is unnecessary for us to enter for the determination of the matters before us. Living unhappily with defendant after their marriage, and having a child by him, she instituted suit for a total divorce’ in 1858, on the grounds of cruelty, etc. This suit is'still pending. The bill above mentioned to reform the marriage articles, alledging fraud in Ainsworth in drawing' them and procuring her assent to them, and praying an injunction to restrain said’defendant from disposing of, or mortgaging the property brought into the marriage relation, and also, for an order placing the property in the hands of a Receiver, with direction that he should apply the income to the maintenance of her children and herself, was filed after her suit for divorce.
It does mot appear from the record that, upon her marriage with Ainsworth, the property in her hands as executrix, was divided, or since. Her share, fixed by her last marriage and limited to a third for her life, remains mixed up as far as we can percieve, with the property of her children by Garrett. Nor are we enabled to determine whether the whole estate of Garrett, remaining undisposed of by her, went into the hands of the Receiver appointed, or not, or only her life estate in one-third.
[632]*632From causes to which it is unnecessary to advert, neither the divorce suit, nor the bill, has been tried; both are still pending. Interlocutory orders appear to have been made, but as to their regularity or propriety, we have nothing to. say, as no error has been assigned in reference to them. In 1868, the defendant moved the Court to make an order, directing the Receiver, in whose hands the property had been placed, to pay over to him a monthly allowance thereform for his support and maintenance. This application was vigorously resisted by Mrs. Ainsworth, on various grounds, presented in writing, amongst which, was an allegation thatAinsworth could support himself, and that he had individual property of his own sufficient for that purpose; and further, that all the estate in the hands of the Receiver, was barely sufficient to support herself and children, and prayed that a jury might be empannelled to enquire into the facts.
It does not appear that the Judge examined any witnesses as to the condition of the property, its income, or made any inquiries as to the amount necessary to be applied in that quarter, of the state of the actual wants of Mrs. Ainsworth and children; but it does appear that he refused to permit the issue made by Mrs. Ainsworth, by her written objections' to the written application of Ainsworth, to be tried by a jury, as was urged upon him by her counsel; and, it also appears that he did not hear testimony himself, in open court, touching the propriety of making any allowance to Ainsworth, but passed an order without due enquiries, directing 'the Receiver to pay out of the income in his hands, for the support of Ainsworth, $15 00 monthly, until the further order, of the Court.
The record discloses the fact, that the Receiver had in his hands $396 42, out of which, he claimed that he was entitled to $300 00 for commissions and services connected with the managment of the property in his hands. If this officer of the Court was justly entitled to the sum charged by him, (into which claim the Court ought to have required a thorough investigation,) the small siim of $96 42 only was subject, at the time, to appropriation — to whom ?
[633]*633In the face of this claim of the Receiver, which does not seem to have been contested by any body, the balance left in his hands within the fraction of a few dollars, is by a dash of the Judicial pen, “sic volo — sic jubeo,”>directed to'be paid to the support of Ainsworth, (presuming the order to stand for six months or, from term to term,) leaving the sum of $6 42 for Mrs. Ainsworth, and her house full of children!!!
Let the application be looked at in another view:
The whole property of Garrett was estimated before the war, at $8,300 00; no deduction being made for emancipation of the slaves, loss of stock, provisions or corn, or other casualties, the result of the, war. Her share, under the will, was a life estate of one-third, say $2,760 00. Having no data by which the income of this share can be accurately ascertained, I will assume it, (and it is a liberal estimate,) to equal the annual interest of the latter sum, say $193 64. If this entire sum was applied to her use, and that of her child by Ainsworth, can any one think that enough for food, clothing and education? Yet out of this one-third product as interest, (and there is no other property brought by her into the marriage relation than the life estate in it,) we have the extraordinary, fact of an allowance to Ainsworth, of $15 00 per month, or $180 00 per annum, leaving $13 64 out of the whole annual interest, for the maintenance of Mrs. Ainsworth and child.
A calculation made in almost any way, having direct reference to either income or interest, arising from the share she was entitled to under her first husband’s will, demonstrates beyond all dispute, that the exercise of Judicial power, in making the allowance to Ainsworth,.was not characterized by sound discretion.
The wife should have been, from all the considerations involved, the first object of judicial care. ■ She-was a suitor for divorce, and prima facie by her bill, sworn to, she was an injured person. The injunction had, at her instance against the husband, still was held over him; the order to the Receiver to pay her alimony pendente lite, and to provide for conducting the litigation, was still of force.
[634]*634That the injunction was within the control of the Court, to modify or remove, is undeniable; but it seems an anomolous proceeding, without precedent, as far as we are advised, by an order on the income in the hands of the Eeceiver, in behalf of the husband, to rescind, virtually, and almost entirely, the alimony allowed her, for which end, chiefly, the property had been placed in the custody of a Eeceiver — a meagre provision, at most — in lieu of the clear, legal right she had to an adequate support out of the labor and property of defendant. ,.
It occurs to us, that the Judge should have borne in mind, when making his order, that the estate of Garrett, in the hands of the widow, when married to defendant, had not then, nor has it since, been divided; that her life-estate, in one-thii’d of that property, not having been legally ascertained, could not have been reduced to possession by the husband, in virtue of his marital rights. Standing thus, it would seem that a court of equity, instead of hearing a troublesome litigation, about the reformation of the marriage articles, looking to the unquestionable equity of the wife, as it appears upon the record • before us, to a competent provision being made for her, out of her own property, the husband being insolvent, would order a division, and compel a settlement, of this small life-estate, .upon Mrs. Ainsworth.
The order, in favor of the husband, out of such a small income, when possession of her life-estate, in the third of the property, by virtue of his marital rights, had not been obtained, seems to be a reversal of all legal principle. Where is to be found any principle that authorizes the support of the husband out of the property of the wife, however large it may be ? By law, her property is exempt from the duty of her own maintenance, and there is no power, in any Court, to subject it to the maintenance of the husband; for the obligation is for the husband to maintain the wife, not the wife the husband. It is a legal duty, from which, whilst living together, he cannot discharge himself, although, she may have separate property ; nor if they are living apart, if the [635]*635fault be not hers, and no court can rightfully change this universal rule.
Assuming the property she brought into the marriage relation to have been absolutely his, still as his control of it.had been restrained by the injunction, and its income appropriated to the support of the wife, we cannot discover any reason-for the interference indirectly with the direction which had been given, unless the Judge may have entertained the idea, that the income was sufficient for the double purpose of supporting both ; but, the testimony shows that he made no inquiry into the facts, actually refused an inquiry into them, and had, therefore, nothing to warrant the indulgence of such an opinion.
It is very probable that the order was granted under the influence of too keen a sensibility, to a miserable spectacle of suffering humanity before him asa suppliant.
It certainly would have béén very excusable in one thus prompted by large benevolence, to bestow from his own purse his charity ; but a charity out of the little pittance previously and properly bestowed on an other, and which brings to her increased suffering and distress, is an indulgence of power, which we think the law neither allows, nor should allow.
It was alleged, and sought to be proved, that Ainsworth had some individual property from the sale,' of which he could have derived support. Why, instead of granting this order, was not the injunction removed as to that individual property, and thus permitted his immediate necessities to be supplied ?
In what has been said, it is not our design either to express or intimate an opinion, that in an application like that of Ainsworth’s, the Judge, because objections had been filed presenting important issuable facts, should have caused an issue to be made up thereon and tried. It would have been a discreet and unobjectionable mode, to have permitted a jury to find the special facts with which he should be acquainted, before making his judgment; but as the application of Ainsworth was resisted, that resistance imposed the duty upon the Judge, of causing an inquiry by him into the facts; this should have [636]*636been by examination of witnesses in open Court, so as to collect from the testimony, the elements for a safe and proper judgment.
As the Judge neither permitted the jury to find the facts, nor ascertained them himself by sworn witnesses, the order in the case was made in -ignorance of facts which were essential to have been considered, and should be rescinded.
Judgment reversed.