The opinion of the Court was delivered by
Rogers, J.
A husband who-survives his wife, by the Act of the 8th April 1833, is entitled to take her whole personal estate, and in England, to her property not reduced into possession, as her administrator. Even in this State, notwithstanding the Act cited, the proper mode of recovering her choses in action will be in the capacity of administrator. But although the husband may, yet he is not bound to take out letters, as he may waive the right to the administration in favour of a third person, who will be a trustee of the assets for the benefit of the husband. The letters of administration were regularly granted to the plaintiff; it is, therefore, incompetent, in this suit, to impeach their regularity. And this depends on principles which are so fully established, that it is only necessary to refer generally to the authorities which have been cited in.the argument. But can a suit be sustained for arrears of alimony, at her death, by her executors against her surviving husband ? On this point there is some uncertainty. Thus in Stones v. Cooke, (7 Simons 22), a bill was filed by the executors of the defendant’s deceased wife for alimony, which the defendant had been ordered by a decree of the Ecclesiastical Court to pay to her. The defendant put in a general demurrer. Sir L. Shadweix, V. C., after having consulted with the Ecclesiastical Court, said, that the better opinion seemed to be, that the Ecclesiastical Court would allow the wife’s executors to enforce payment of the arrears of alimony against the husband. If that were so, a bill in chancery, the vice-chancellor observed, was unnecessary, as the principle on which the court grants a ne exeat against the husband, is that the Ecclesiastical Court has no power to compel him to give bail. But as it was not so clear that the Ecclesiastical Court would, in a case like the present, decree an account and payment of alimony, as to justify him in allowing the demurrer, it was overruled. But on appeal, Lord Lyndiiurst, chancellor, allowed the demurrer, and said that the argument that the party would be without remedy because executors could not maintain a [87]*87suit in the Ecclesiastical Court, operated against the bill, as showing that the claim must cease with the wife’s death. He observed, that there was no instance of such a bill filed against a husband; nor did the authorities warrant it; and the non-interference of the Ecclesiastical Court did not found any jurisdiction in the Court of Chancery. 3 Jurist 1116, approved by Lord Cottingham, Stones v. Cooke, (8 Simons 321, n.)
And this principle results from the relations of husband and wife. A sentence of divorce a mensS. et thoro does not so far destroy the relation of husband and wife as to make the latter a feme sole; such a sentence merely suspends, for a time, some of the obligations arising out of that relation. A woman divorced a mensa et thoro, and living separate and apart from her husband, cannot be sued as a feme sole, unless in the known excepted cases of abjuration, exile, and the like, where the husband is considered as dead, and the woman as a widow. The same holds good where she is divorced a vinculo. Marshall v. Rutton, (8 T. R. 545); Hyde v. Price, (3 Vez. 343); Lean v. Schutz, (2 Black. 1195). Alimony is not considered the separate property of the wife, but it is that proportion of the husband’s estate which the court allows her for her present subsistence and livelihood according to law, when they decree a separation from bed and board. In Vandergucht v. De Blaquiere, (8 Simons 315), it was attempted to assimilate alimony to the separate use of a woman, but the court denied the similitude, for alimony is liable to be varied by the court according to the husband’s circumstances. A married woman, divorced from her husband, and entitled to alimony under the sentence of the Ecclesiastical Court, accepted a bill of exchange for articles of dress supplied to her by the drawer, and made payable at her banker’s, to whom her alimony was paid.- It was held she did not thereby charge her alimony. The bill was filed by the husband of a milliner against a lady and her trustees named in a deed of separation between her and her husband, and it prayed an injunction to restrain certain sums from being paid to the wife, until the plaintiff was paid a bill of £225 due to her for millinery. An injunction having been granted, it was dissolved, and a distinction taken between her sepamte estate and alimony. The former she had a right to charge, but the latter she has not, because it is given for her support and maintenance from year to year. In case of a divorce a mensa et thoro, she ought to apply her alimony to her support, as her occasions may require; and if those who know her condition, instead of requiring immediate payment, give credit to her, they cannot sue her. Beard v. Webb, (2 Bos. & Pul. 93); Marshall v. Rutton, (8 T. R. 545); Murray v. Barlee, (3 M. & K. 220).
As a divorce a mensa, et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation, it follows that the right, as regards succession [88]*88to property, is not impaired. Thus a wife, after a divorce on account of cruelty, is dowable of her husband’s land. Stowel’s Case, (Cro. Car. 463). So a husband is tenant by the curtesy of his wife’s lands. The husband is also entitled to her personal property, and he may release a legacy given to his wife, notwithstanding a divorce. Thus a wife obtained a sentence of divorce on account of the husband’s adultery: the wife sued in the spiritual court for a legacy given to her; in answer, the release of the husband after the divorce was pleaded, and the court held that inasmuch as the sentence did not avoid the marriage absolutely, but they remained husband and wife, the release of the husband was effectual. Cro. Eliz. 908; 1 Salk. 123. But it has been held that a husband, after a divorce, cannot release costs awarded to the wife in a suit of defamation. Motteram v. Motteram, (Buls. 264); Chamberlaine v. Hewson, (5 Mod. 70). The reason the release will not bar the wife, is, because the costs come in lieu of what she has spent out of her alimony, which is a separate maintenance, and not in the power of the husband. 8 Bac. Ab., tit. “ Baron and Feme” 482. Thus it appears that the title to property, whether dower, curtesy or personal estate, is affected by a divorce according to the nature of the divorce; for if it be a dissolution of the marriage and then only, the rights consequent upon it will cease. But where the bond of matrimony is not dissolved, as in case of a divorce a mensa, et thoro, the rights of the parties, so far as regards succession to property, remain as before.
From this it would result, that the arrears of alimony belong to the husband; and it would seem to be against right to compel him to pay to another that which belongs to himself. And this may have been avoided by the husband, who might, upon a proper application, have the letters of administration set aside; but this he has not thought proper to do; and it cannot be done, as has 'been already said, collaterally. This case is peculiar in its circumstances, and upon equitable grounds only can a suit be sustained. In Stones v. Cook, (9 Cond. E. C.
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The opinion of the Court was delivered by
Rogers, J.
A husband who-survives his wife, by the Act of the 8th April 1833, is entitled to take her whole personal estate, and in England, to her property not reduced into possession, as her administrator. Even in this State, notwithstanding the Act cited, the proper mode of recovering her choses in action will be in the capacity of administrator. But although the husband may, yet he is not bound to take out letters, as he may waive the right to the administration in favour of a third person, who will be a trustee of the assets for the benefit of the husband. The letters of administration were regularly granted to the plaintiff; it is, therefore, incompetent, in this suit, to impeach their regularity. And this depends on principles which are so fully established, that it is only necessary to refer generally to the authorities which have been cited in.the argument. But can a suit be sustained for arrears of alimony, at her death, by her executors against her surviving husband ? On this point there is some uncertainty. Thus in Stones v. Cooke, (7 Simons 22), a bill was filed by the executors of the defendant’s deceased wife for alimony, which the defendant had been ordered by a decree of the Ecclesiastical Court to pay to her. The defendant put in a general demurrer. Sir L. Shadweix, V. C., after having consulted with the Ecclesiastical Court, said, that the better opinion seemed to be, that the Ecclesiastical Court would allow the wife’s executors to enforce payment of the arrears of alimony against the husband. If that were so, a bill in chancery, the vice-chancellor observed, was unnecessary, as the principle on which the court grants a ne exeat against the husband, is that the Ecclesiastical Court has no power to compel him to give bail. But as it was not so clear that the Ecclesiastical Court would, in a case like the present, decree an account and payment of alimony, as to justify him in allowing the demurrer, it was overruled. But on appeal, Lord Lyndiiurst, chancellor, allowed the demurrer, and said that the argument that the party would be without remedy because executors could not maintain a [87]*87suit in the Ecclesiastical Court, operated against the bill, as showing that the claim must cease with the wife’s death. He observed, that there was no instance of such a bill filed against a husband; nor did the authorities warrant it; and the non-interference of the Ecclesiastical Court did not found any jurisdiction in the Court of Chancery. 3 Jurist 1116, approved by Lord Cottingham, Stones v. Cooke, (8 Simons 321, n.)
And this principle results from the relations of husband and wife. A sentence of divorce a mensS. et thoro does not so far destroy the relation of husband and wife as to make the latter a feme sole; such a sentence merely suspends, for a time, some of the obligations arising out of that relation. A woman divorced a mensa et thoro, and living separate and apart from her husband, cannot be sued as a feme sole, unless in the known excepted cases of abjuration, exile, and the like, where the husband is considered as dead, and the woman as a widow. The same holds good where she is divorced a vinculo. Marshall v. Rutton, (8 T. R. 545); Hyde v. Price, (3 Vez. 343); Lean v. Schutz, (2 Black. 1195). Alimony is not considered the separate property of the wife, but it is that proportion of the husband’s estate which the court allows her for her present subsistence and livelihood according to law, when they decree a separation from bed and board. In Vandergucht v. De Blaquiere, (8 Simons 315), it was attempted to assimilate alimony to the separate use of a woman, but the court denied the similitude, for alimony is liable to be varied by the court according to the husband’s circumstances. A married woman, divorced from her husband, and entitled to alimony under the sentence of the Ecclesiastical Court, accepted a bill of exchange for articles of dress supplied to her by the drawer, and made payable at her banker’s, to whom her alimony was paid.- It was held she did not thereby charge her alimony. The bill was filed by the husband of a milliner against a lady and her trustees named in a deed of separation between her and her husband, and it prayed an injunction to restrain certain sums from being paid to the wife, until the plaintiff was paid a bill of £225 due to her for millinery. An injunction having been granted, it was dissolved, and a distinction taken between her sepamte estate and alimony. The former she had a right to charge, but the latter she has not, because it is given for her support and maintenance from year to year. In case of a divorce a mensa et thoro, she ought to apply her alimony to her support, as her occasions may require; and if those who know her condition, instead of requiring immediate payment, give credit to her, they cannot sue her. Beard v. Webb, (2 Bos. & Pul. 93); Marshall v. Rutton, (8 T. R. 545); Murray v. Barlee, (3 M. & K. 220).
As a divorce a mensa, et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation, it follows that the right, as regards succession [88]*88to property, is not impaired. Thus a wife, after a divorce on account of cruelty, is dowable of her husband’s land. Stowel’s Case, (Cro. Car. 463). So a husband is tenant by the curtesy of his wife’s lands. The husband is also entitled to her personal property, and he may release a legacy given to his wife, notwithstanding a divorce. Thus a wife obtained a sentence of divorce on account of the husband’s adultery: the wife sued in the spiritual court for a legacy given to her; in answer, the release of the husband after the divorce was pleaded, and the court held that inasmuch as the sentence did not avoid the marriage absolutely, but they remained husband and wife, the release of the husband was effectual. Cro. Eliz. 908; 1 Salk. 123. But it has been held that a husband, after a divorce, cannot release costs awarded to the wife in a suit of defamation. Motteram v. Motteram, (Buls. 264); Chamberlaine v. Hewson, (5 Mod. 70). The reason the release will not bar the wife, is, because the costs come in lieu of what she has spent out of her alimony, which is a separate maintenance, and not in the power of the husband. 8 Bac. Ab., tit. “ Baron and Feme” 482. Thus it appears that the title to property, whether dower, curtesy or personal estate, is affected by a divorce according to the nature of the divorce; for if it be a dissolution of the marriage and then only, the rights consequent upon it will cease. But where the bond of matrimony is not dissolved, as in case of a divorce a mensa, et thoro, the rights of the parties, so far as regards succession to property, remain as before.
From this it would result, that the arrears of alimony belong to the husband; and it would seem to be against right to compel him to pay to another that which belongs to himself. And this may have been avoided by the husband, who might, upon a proper application, have the letters of administration set aside; but this he has not thought proper to do; and it cannot be done, as has 'been already said, collaterally. This case is peculiar in its circumstances, and upon equitable grounds only can a suit be sustained. In Stones v. Cook, (9 Cond. E. C. R. 460), the doubt was whether the Ecclesiastical Court could give a remedy, and if they could not, it seems to be conceded that a bill would lie by the executors of a married woman to recover arrears of alimony due at her death. Here the administrators sue for the benefit of the creditors of the wife, who will be without remedy unless this action can be sustained. After the sentence of the court decreeing alimony, the husband withdrew himself from the jurisdiction of the court, so that it became impossible, by his own act, to enforce the decree by attachment. It is true, that alimony is given to the wife for her support; and, unlike her separate estate, it is not chargeable for her debts, and that in ordinary cases persons trust her at their own peril; but what is a wife to do, when the husband obstinately refuses to pay, and withdraws himself from the jurisdiction of the court by abjuring the State? She has no pro[89]*89perty, except her alimony, and if that is not paid, she must contract debts, which debts must be paid by the husband, or out of the arrears of her alimony. He cannot escape from the consequences by- his own improper act. Here the only remedy is by an attachment against the land of the husband; and of this remedy we will not deprive the creditors; nor would we have prevented the wife from a similar proceeding in her lifetime. If after payment of the debts anything should remain, the administrator will hold it for the use of the husband, on the principle before stated.
As to the technical difficulty, whether an action of debt lies for alimony decreed on a sentence of divorce, it seems to be settled in Howard v. Howard, (15 Mass. 196). The sum is ascertained by the decree of the court. It is certain; and this appears of record, in the nature of definitive decree. Besides, this is an equitable relief; and, as we have no Court of Chancery, the form of action is no barrier to the recovery.
Judgment affirmed.