The opinion of the court was delivered by
Adams, J.
It will be observed that the decree appealed from awards not permanent alimony, but, in the language of the decree itself, “ additional alimony pendente lite.” A husband .is bound to support his wife, though she is separated from him, unless she is in fault. When in apiparen t good faith she sues him for a divorce or for separation, and sets forth a prima facie case, there is no presumption that she is in fault. She is therefore entitled to alimony pendente lite. Otherwise she will be at her husband’s mercy. But, on the other hand, while the merits of the controversy are yet undetermined, and since it may turn out that the wife is in the wrong, it is reasonable that the award of alimony pending suit should be somewhat strictly limited to the cost of litigation and to the support of the wife and of her dependent children. In Germond v. Germond, 2 Paige 643, Chancellor Walworth said: “As a general rule, to guard against any abuse of the privilege of the wife to obtain a temporary support pending a suit for a divorce or separation, and to prevent the bringing of improper suits for the mere purpose of obtaining a support during a protracted litigation, the temporary alimony must be limited to the actual wants of the wife until the termination of the suit in her favor establishes the fact that she has been abused and is entitled to a more liberal allowance.”
The distinction between alimony pending suit and permanent alimony, and the nature of the husband’s obligation to furnish them, respectively, in proper cases, are well stated by Vice-Chancellor Van Fleet in the following passage extracted from the opinion in Westerfield v. Westerfield, 9 Stew. Eq. 195, 196, [575] 197: “ There can be no doubt that it is -the duty of a husband to support his wife.. This duty flows out of the marriage contract and does not at all depend on the wife’s means or want of means. The husband’s duty is the same in this respect whether his wife has property or not, and it is equally clear that if the husband refuses to perform this duty by abandoning his wife or separating himself from her and refusing or neglecting to,maintain and provide for her, this court may compel him to furnish suitable support and maintenance for her. But the court cannot give such relief, to the wife until the husband has had his day in court and been afforded an opportunity to contest her proofs and submit his own. An application for alimony pendente lite stands now solely on the ground of necessity. Originally, such allowances were made in divorce suits almost as a matter of course. At common law, by the marriage contract, the'husband acquired complete control over all property owned by his wife at the time of the marriage or which she might acquire during coverture. In such a state of affairs, unless the court required the husband to support his wife and to furnish her with the means of prosecuting her suit or defending his, she would be left during the litigation both destitute and defenceless. She was, therefore, in almost all cases, regarded as a privileged suitor, who had a right to call upon her adversary for both support and the means required to carry on the litigation on her part.”
The necessity spoken of by ’Vice-Chancellor Van Fleet in the above passage is the necessity of the wife, arising from her pecuniary inability at common law, a necessity which, as the learned vice-chancellor proceeded to observe, has been much ameliorated by the liberal modern rules as to the capacity of married women to hold property. But there is another sense in which alimony pendente lite “ stands solely on the ground of necessity.” For the reason above stated by Chancellor ’Walworth, it should include only items that are necessary. The word necessary is, indeed, to be taken in a liberal sense. As Vice-Chancellor Pitney happily said, in Alling v. Alling, 7 Dick. Ch. Rep. 92, 96: “The physical ability of the child to earn its bare food and [576] clothing is not the test or gauge in this court of a parent’s duty to support and educate it.” The necessity that is the criterion of validity is not mere physical necessity, but rather social and moral propriety, having regard to the situation of the parties and the fituess of things. Food, shelter and clothing are physical necessities. In an enlightened community the common education of a child is a moral and social necessity. Professional traiuing is not a general necessity, but is a special advantage. Whether a young man shall study a profession is a question usually determined for him by his parents, especially by his father, with some reference to the son’s taste and capacity. It is not well for courts to assume unnecessary responsibility in the critical matter of choosing a profession, as to which even the persons most deeply interested and best qualified to judge are not free from liability to error, or to stand in loco parentis before the locus parentis has been vacated or forfeited by the death, disability or misconduct of the rightful incumbent.
It may be further observed that the courts, in determining the amount of alimony, have had regard to the age and earning capacity of the minor for whose support and education the wife asks an allowance. In Snover v. Snover, 2 Beas. 261, it was directed by Chancellor Green that so much of an award of permanent alimony as was designed for the support of a daughter should cease when she should reach the age of eighteen. In Amos v. Amos, 3 Gr. Ch. 171, Chancellor William Pennington said : “ Where children are grown' up, it is not proper to make an allowance on their account,” having evidently in mind their arrival, not at legal majority, but at a condition of earning capacity. Again, it is to be remembered that the courts are disposed to recognize and enforce proper agreements inter partes, touching the support of a wife. Calame v. Calame, 10 C. E. Gr. 548. Moreover, it may be material to inquire whether the court has awarded to the wife the custody of the minor child who lives with her, and the cost of whose support she asks to have included in her award of alimony. This is so, because, in the case of a grown-up child, the father’s duty to furnish support and the child’s duty to render service are usually reciprocal. Bear[577] ing in mind the general considerations above stated, the force and authority of which are evident, it remains to examine the facts of this case and apply the appropriate rule.
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The opinion of the court was delivered by
Adams, J.
It will be observed that the decree appealed from awards not permanent alimony, but, in the language of the decree itself, “ additional alimony pendente lite.” A husband .is bound to support his wife, though she is separated from him, unless she is in fault. When in apiparen t good faith she sues him for a divorce or for separation, and sets forth a prima facie case, there is no presumption that she is in fault. She is therefore entitled to alimony pendente lite. Otherwise she will be at her husband’s mercy. But, on the other hand, while the merits of the controversy are yet undetermined, and since it may turn out that the wife is in the wrong, it is reasonable that the award of alimony pending suit should be somewhat strictly limited to the cost of litigation and to the support of the wife and of her dependent children. In Germond v. Germond, 2 Paige 643, Chancellor Walworth said: “As a general rule, to guard against any abuse of the privilege of the wife to obtain a temporary support pending a suit for a divorce or separation, and to prevent the bringing of improper suits for the mere purpose of obtaining a support during a protracted litigation, the temporary alimony must be limited to the actual wants of the wife until the termination of the suit in her favor establishes the fact that she has been abused and is entitled to a more liberal allowance.”
The distinction between alimony pending suit and permanent alimony, and the nature of the husband’s obligation to furnish them, respectively, in proper cases, are well stated by Vice-Chancellor Van Fleet in the following passage extracted from the opinion in Westerfield v. Westerfield, 9 Stew. Eq. 195, 196, [575] 197: “ There can be no doubt that it is -the duty of a husband to support his wife.. This duty flows out of the marriage contract and does not at all depend on the wife’s means or want of means. The husband’s duty is the same in this respect whether his wife has property or not, and it is equally clear that if the husband refuses to perform this duty by abandoning his wife or separating himself from her and refusing or neglecting to,maintain and provide for her, this court may compel him to furnish suitable support and maintenance for her. But the court cannot give such relief, to the wife until the husband has had his day in court and been afforded an opportunity to contest her proofs and submit his own. An application for alimony pendente lite stands now solely on the ground of necessity. Originally, such allowances were made in divorce suits almost as a matter of course. At common law, by the marriage contract, the'husband acquired complete control over all property owned by his wife at the time of the marriage or which she might acquire during coverture. In such a state of affairs, unless the court required the husband to support his wife and to furnish her with the means of prosecuting her suit or defending his, she would be left during the litigation both destitute and defenceless. She was, therefore, in almost all cases, regarded as a privileged suitor, who had a right to call upon her adversary for both support and the means required to carry on the litigation on her part.”
The necessity spoken of by ’Vice-Chancellor Van Fleet in the above passage is the necessity of the wife, arising from her pecuniary inability at common law, a necessity which, as the learned vice-chancellor proceeded to observe, has been much ameliorated by the liberal modern rules as to the capacity of married women to hold property. But there is another sense in which alimony pendente lite “ stands solely on the ground of necessity.” For the reason above stated by Chancellor ’Walworth, it should include only items that are necessary. The word necessary is, indeed, to be taken in a liberal sense. As Vice-Chancellor Pitney happily said, in Alling v. Alling, 7 Dick. Ch. Rep. 92, 96: “The physical ability of the child to earn its bare food and [576] clothing is not the test or gauge in this court of a parent’s duty to support and educate it.” The necessity that is the criterion of validity is not mere physical necessity, but rather social and moral propriety, having regard to the situation of the parties and the fituess of things. Food, shelter and clothing are physical necessities. In an enlightened community the common education of a child is a moral and social necessity. Professional traiuing is not a general necessity, but is a special advantage. Whether a young man shall study a profession is a question usually determined for him by his parents, especially by his father, with some reference to the son’s taste and capacity. It is not well for courts to assume unnecessary responsibility in the critical matter of choosing a profession, as to which even the persons most deeply interested and best qualified to judge are not free from liability to error, or to stand in loco parentis before the locus parentis has been vacated or forfeited by the death, disability or misconduct of the rightful incumbent.
It may be further observed that the courts, in determining the amount of alimony, have had regard to the age and earning capacity of the minor for whose support and education the wife asks an allowance. In Snover v. Snover, 2 Beas. 261, it was directed by Chancellor Green that so much of an award of permanent alimony as was designed for the support of a daughter should cease when she should reach the age of eighteen. In Amos v. Amos, 3 Gr. Ch. 171, Chancellor William Pennington said : “ Where children are grown' up, it is not proper to make an allowance on their account,” having evidently in mind their arrival, not at legal majority, but at a condition of earning capacity. Again, it is to be remembered that the courts are disposed to recognize and enforce proper agreements inter partes, touching the support of a wife. Calame v. Calame, 10 C. E. Gr. 548. Moreover, it may be material to inquire whether the court has awarded to the wife the custody of the minor child who lives with her, and the cost of whose support she asks to have included in her award of alimony. This is so, because, in the case of a grown-up child, the father’s duty to furnish support and the child’s duty to render service are usually reciprocal. Bear[577] ing in mind the general considerations above stated, the force and authority of which are evident, it remains to examine the facts of this case and apply the appropriate rule.
The bill was filed by the wife on August 17th, 1896, for a limited divorce on the ground of extreme cruelty. On August 18th, 1896, a petition for alimony pendente lite was filed. On November 2d, 1896, an order was made directing the payment of a counsel fee and alimony at the rate of ¡§12.50 per week. On the same day another order was made, reciting that the defendant had filed his petition, praying for an order awarding the custody of said petitioner’s son, August Streitwolf, Jr., to him during the pendency of the suit, and that it appeared that it would be for the benefit of the infant that he should be put to school, and that at the school he should not be visited by either parent during the pendency of the suit, and that the father had expressed his willingness to defray the expenses of such disposition of the infant, and directing that said August Streitwolf, Jr., be placed in the Peddie Institute, at Hightstown, New Jersey, where he formerly had been at school, and that said petitioner pay the'expenses of removing the said August Streitwolf, Jr., to said Institute, and his expenses there, including board, tuition, suitable clothing and petty cash, and that he should not be visited by either parent while attending school. No order was then made, or has ever been made, awarding the custody óf the sou to either parent. The boy was sent to the Peddie Institute under this order, but remained only a short time. On August 19th, 1897, an answer to the bill was filed, and on September 3d, 1897, a replication was filed. No testi-. mony has been taken to substantiate thé allegations of the bill. On October 7th, 1897, the defendant obtained a fraudulent divorce from his wife, in the State of North Dakota, which, on supplemental bill filed in this suit, has been declared void by the decree of the court of chancery, affirmed by this court. This fraudulent proceeding, reprehensible as it is, throws no light on the merits of the case made by the complainant’s first bill. The fact that the defendant got a fraudulent divorce from his wife, in North Dakota, has no tendency to prove that he [578] treated her with extreme cruelty in New Jersey. The suit is at issue, with no proofs taken on either side, and with no presumption, as to that issue, for or against either party.
In January, 1897, the son, being in his nineteenth year, entered a law office aud began to attend the night sessions of the law school of the University of the City of New York, It is said that an application was made to the chancellor in the fall of 1897 to increase the alimony of the wife sufficiently to enable her to pay the son’s tuition in the law school for the year then beginning. There is no record of such an application, or of any order for such increase of alimony. It does appear that the defendant paid $75 towards his son’s expenses for that year. The proof does not, however, warrant the conclusion that the defendant then agreed or consented to educate his son as a lawyer.
On November 10th, 1898, or thereabouts, the defendant was notified of an application for an order requiring him to pay the sum of $135 for tuition and law books for the law-school year beginning October 1st, 1898. There was no petition — merely a notice founded on an affidavit of August Streitwolf, Jr. The application was not in form for the payment of alimony pendente lite, but was for the payment of the sum above mentioned for tuition and books. The testimony of the father and son was taken before Vice-Chancellor Pitney. It appears from the son’s testimony that he was living with his mother, earning ,$4 per week by work in a law office, and attending the night classes in the law school; that his mother boarded and clqthed him; that his father had given him a suit of clothes and some money, and had further, at some time prior to August, 1896, found a place for him in a business house in New York City, which the son did not keep, as he thought it too hard for him. It appears from the testimony of the father that he is strongly opposed to his son’s attendance on the law school, and that he wants him “ to do something practical.” Pie mentions further details of his getting his son a place in a business house. The order applied for was, in substance, granted. It is from that order that the appeahwas taken. When the order was made the son was [579] in his twentieth year. He is now in his twenty-first year. His class at the law school will graduate in the year 1900.
Erom this recital it appears that the application to the court of chancery was virtually for an order compelling the husband, against his own judgment, by way of supporting his wife pending suit, to make a grown-up son a lawyer and to pay the expense of his professional education. We do not find that the husband had committed himself to this course by his own conduct or that he had become bound to take it by any previous adjudication. For reasons already stated, we think that the order appealed from was an undesirable extension of a power that exists primarily for the protection of the wife. The son’s ambition in the direction of a liberal education is in itself commendable, but upon the facts now before us and at this stage of the suit, the father cannot be forced to gratify that ambition without making an unwise exception to a good rule.
The order is reversed.
For reversal — The Chief-Justice, Van Syckel, Garrison, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Yredenburgh — 11.
For affirmance — Dixon, Lippincott — 2.