[Present, Chancellors Rutieege, Marsham and James.]

#### ANONYMOUS.

The Court of Chancery will decree alimony in proper cases; huta widow is not entitled to recover alimony or maintenance from the estate of her deceased husband, after living many years separate from, him, without suing in his life time. The demand does not survive, though the separation was at the desire of the husband, and against her inclination, and there was no fault in herconduct alleged against, her; and he never maintained his wi<e or child during his life, and made no adequate provision for them by his will: and though sliefor-hove to institute suit for ; ¡imm. < in her husbands life time, to prevent violen.ee between him, and iter relations.

*199THE bill was filed on the 5th of Dec. 1800, by a widow against the executor of her deceased husband to obtain arrears of maintenance from her husband’s estate during many years that he had lived apart from her, and furnished no means of support to her, or to his daughter.

MAY, 1803.

The bill states that the complainant married the defendant’s testator in May, 1772, at London, and arrived in this state in August following. That on the 28th of Feb. following, complainant was delivered of a daughter at the house of her husband’s mother. That from their marriage until the birth of said daughter, they lived together as man and wife, though not happily. That in May, after the birth of her daughter, she visited her friends in another part of the country at the desire of her husband. That af-terwards she was desirous to return to her husband, but he refused to receive her, and continued so to do until his death in February, 1796. That her friends perceiving he intended to live separate from her, they insisted he should allow her a separate maintenance; and accordingly some negotiations were begun, and eminent counsel employed to enforce the claim, who made some progress in the business; and her husband offered to hire a house for her in Charleston, and to maintain her as his wife ; and he assented that she might fix her own annuity. That some altercation taking place, a quarrel ensued between her said husband and her counsel, which ended in blows, and a duel between her said husband, and a nephew of her counsel. And the complainant being alarmed at these violences, and fearing that the death of her said husband, or some of her relations who took a warm part in her cause, might be the consequence of pursuing her claim, she on this account alone desisted from pursuing the same.

That front the time she visited her friends, until the marriage of her daughter, neither herself nor her daughter were maintained by her husband; but by her relations until the death of her father, who bequeathed to her brother property amounting to 1600/. in value, in trust for the sole use of complainant and the heirs of her body, with which *200sKe has maintained herself and her daughter, until her daughter’s marriage. That notwithstanding the long se-para¿0Ilj complainant being conscious she had acted like an affectionate wife, hoped he would finally compensate her for the distress .she had sustained by his conduct; but he died (sometime early inFeb’ry. 1F96) without compensating his wife and daughter for the neglect hitherto shewn as to their maintenance. That at the death of her husband he had by him a will dated in Oct. 1791, in which, among other devises, he gives as follows : “ First, after all my just debts are paid, I give and bequeath unto my wife (naming her) the sum of fifty pounds sterling, in lieu of her dower, and every other of her demands against my estate real or personal.” And then after giving *SOI.*to his daughter, he devised the residue of his estate to distant relations, and appoints the defendant his executoi-. That his estate was estimated at 15,000/. sterling, and *complainant*knowing her right to dower out of the real estate to be incontrovertible, and that her claim to maintenance during .separation, and the infancy of her daughter, was just, instituted her suit at law for the first,' and demanded payment of the latter from the executor, hoping her demand would have been complied with: but although the legality of complainants claim was admitted, and a recovery had as to her dower; yet said executor has refused her demand for alimony, alleging at one time that she eloped from her husband, whereas complainant charges that she quitted her husband’s house on the visit appointed by his express *direction;*at other times the defendant pretends that il complainant ever had any right to alimony, she relinquished it by desisting from her pursuit of it for so many years; and that if she did not, her right expired with her hus • band..

Whereas complainant contends that desisting for a time under imperious circumstances, by no means implies a relinquishment ; and that such claim cannot expire with her husband, seeing that maintenance is an obligation imposed by law upon a husband, which therefore will survive, whe*201ther created by act of parties or provision of law. All which doings are contrary to equity and good conscience.-

•Bill concludes in usual manner, and prays for rAeif.

To this bill the defendant pleaded the statute of limitations.

On argument, the plea of the statute of limitations was overruled. But the court having some doubts whether the demand was not altogether óf a personal nature, and whether by the wife’s not making her application during the life of her husband, she had not slept so long on her rights as to have lost her title to relief, the court directed that point to be argued and precedents sought for, before they would order the defendant tb answer.*

. This question came op to a hearing, and was argued by Messrs.d?ARKER, Holmes and Desaussure and Ford for Complainant, and by Messrs. DrAyton and Simons for the defendant.

For the complainant, it was contended that the doctrine of alimony is derived from that of divorce *a mensa et tho-*ro, by the ecclesiastical court. There is no such court in this country; but a voluntary separation by mutual consent, or a separation by the wife, *ex justa cans a,*must draw after it the same doctrine and relief. This arises *ex necessi*tate, else the *greatest*injustice would be done, without any remedy for it. And even in England where there are competent Ecclesiastical Courts, the Court of Equity has concurrent jurisdiction. See 1 Fonbl. 96,7. 2 Vern. 752. Williams vs. Callow. The suit for alimony is given to the wife in case of separation, if the husband refuses to make her an allowance suitable ,to their station in life, and his fortune. It is called an injury to the wife, which the court Christian will redress.” See 3 Bla. Com. 93, 4.— Alimony is a vested right, on a proper case being made out. It arises out of the marriage contract to maintain *202the wife *;*together if they live happily ; separate, if unhappy circumstances should separate them without crimi-naljty on the part of the wife. It is an allowance out of the husband’s estate for the wife’s support, on consideration of all the circumstances, 1 Bla. Com. 441,2.

Maintenance is a vested right in the wife, founded on the marriage contract; on the weakness of the sex *j*on the confidence implicitly reposed in the *husband;*on the great advantages given to the husband in and over the property of his wife. It is a duty to allow it. Godolphin, 509. 1 Levinz. p. 6. See 2 Blac. 302.

There is no good reason why this right should not survive to the wife. The claim being founded in contract, the most sacred of all others, the marriage contract, may survive as well as any other contract, unless satisfied in the life time of the parties : — and it is more peculiarly so, as the law relying on the husband’s *faithfully*performing his contract, and his duty to maintain his wife, gives him an absolute right in all her personal estate, reduced to possession, and other rights in her other *property;*from which alone she could be maintained, if he refuses to do so.

It .cannot be reasonably contended that this right to sue for and recover alimony, arises *ex delicto ;*no more than any other case, where a man by a breach or non performance of a contract, makes himself liable to suit. And there is no more reason for the uncertainty of the amount preventing the claim surviving in this case than in any other. And there are numerous cases of claims of uncertain amount surviving. Nor can it be said that the vife in this case hath waived her right. The husband refused to receive his wife home; and when it was ascertained that he was resolved she should never return home to him, she set up her claim to maintenance for- herself and infant daughter. This was apparently acquiesced in. But some disputes arising, and blows 'and a duel following between her hnsband and her counsel and his friend, this unhappy lady became terrified at the evils and bloodshed which, might result from the prosecution of her *claim;*and she *203dropped the pursuit at that time. Her feelings and her forbearance prevented the renewal of her claim during her husband’s life, lest it should provote a renewal of these scenes. She subsisted with difficulty, and maintained his daughter on small means derived from her friends, and contracted debts which now straiten her, rather than produce mischief and blood by pursuing her claim in his life time. It would be hard indeed if this forbearance, founded on such motives, should be construed into a waiver or abandonment of her claims. It surely was not intended by ber as a waiver, and the circumstances will fully justify the court for not presuming ,a waiver against the facts of the case.

All presumptions of waiver or’ satisfaction are on the ground that there has been a culpable omission in the prosecution of the claim. But it would be a perversion of words, and a forgetfulness of all correct feelings, to call such forbearance on the part of this lady a culpable omission. Her conduct has been correct throughout, and there ds no shadow of blame on her.

Alimony and dower are distinct rights *;*where alimony-terminated, dower began — and both are recoverable.

The ground of doubt whether a wife who has been obliged to live separate from her husband, without any maintenance, is entitled to recover alimony after his death, has arisen from the misapplication of another principle— to wit: That a wife having a right to the settlement of her estate, this court would compel, him to make it. But it is a personal equity, and if she dies, her children cannot compel it. 1 -Fonbl. 89. And so though the wife may be entitled to the income of a separate estate, yet if she do not demand the produce in the husband’s life time,- and he maintains her, an account of such separate estate shall not be carried back beyond the last year — and this is upon an, implied waiver. 1 Fonbl. 95.

For the defendant it was argued that the claim to ali».. mony will not survive.

The husband is not liable except for necessaries, and *204that only during- the marriage and cohabitation. 1 *Bla.*442. The case of Corbet and Poelnitz which attempted t0 exiCnd the liability of the husband for the contract!, of-the wife has been overruled in 8 Term Rep. -Marshall v. Rutkin.

The ecclesiastical court decrees alimony only in cases of divorce, a *mensa et thoro.*And though from necessity the Court of Equity has assumed the jurisdiction in this country, to prevent a total failure of'justice,yet it will not decree alimony except in cases where the ecclesiastical courts, would have granted a divorce a *mensa et thoro.*This court is still governed by the same principles. ' The substance of the claim has undergone no change. See 2 Vesey, jr. 19Í.

All the cases shew that alimony is granted only on the misconduct of the husband and on the correct conduct *of*the wife. His ill conduct is a tort. It is therefore a personal claim, and dies with the parties. 2 Atk. 97. The decrees for the relief of the wife are always prospective. 2 P. Wms. 82. Hankey v. Cox.

The Court of Equity allows alimony only during the separation, and if the lius-band shews that she is obstinate, and will not return, though -he is willing to receive her, the alimony will be revoked. See 3 Atk. 517, 550. Head and ¡Head. 2 Atk. 96. Watkins v. Watkins. -2 Veyn. 752. Williams v. Callow.

This is a claim which cannot survive and be prosecuted after the death of the husband. The claim is founded on the violation of his marital duties ; and is *ex delicto,*not *ex contractu.*The acquiescence too, has been for many years. It was 23 years from the separation to the death of the husband, and in all that time but one claim was made, and that soon dropped. Then the husband died in .1796, .and no claim made till the bill filed in 1800. This is a waiver of the demand; for whatever were the motives, the Waiver and the abandonment were complete and decisive. o Bro. C. C. 639, Smith v. Lane. 2 Vesey, jr. 87. Ibid, 585. and 3 Atk. 225.

*205Besides it would be dangerous to allow such demands after a husbands death. The subject of the differences between husband and wife are of a delicate kind; and the .reasons of his conduct are probably locked up in his own breast. To allow such charges and demands to be made after his death, would be to expose his memory to misrepresentation and reproach, without his executors having the means of defence. *1*he demand of the wife is refused on several grounds j and if the husband were living, he might shew that some of those grounds existed.

The widow has dower allowed her after her husbands death. It has been claimed and allowed in this case. Now dower is allowed after the husbandis death in lieu of alimony, which he no longer lives to furnish.

*

 This was equivalent, as insisted "by her counsel, to putting’ the cause on the footing of a hill demurred to ; or a motion to dismiss a hill for want of equity apparent on the face of the bill, admitting ittc’ be true.

'The Court took time to advise, and afterwards Chancellor Rutledge delivered the decree of the Court.

The complainants bill states that she married the *hite*. . . A. B. defendants testator, in London, in May, *1772;*ihat they arrived here in August following ; — that in the February ensuing, she was delivered of a daughter. That from the time of her marriage to the birth of her daughter, they lived together a? man and wife, though not so happily as could have been wished. That in May, 1773, she went to. visit some of her friends at Beaufort, at the express desire of her husband, and was afterwards desirous of returning to him; but that he refused to receive her, and continued so to do till his death in March, 1796.— That some negotiations were set on foot for allowing her a separate maintenance, but a quarrel ensuing they were broken off, and never afterwards renewed. The reasons why nothing further was done are particularly detailed in the bill. Complainant therefore prays a suitable allowance, during the time she lived separate from her husband. To this bill defendant pleaded the limitation act, which upon argument was overruled. A strong doubt arising whether the demand of complainant was not altogether of a personal nature, and by her not making appli*206cation during.iho lift ofbr husband, she bad n.>t slept so long' on her rights as to lose: her title to relief, the court de - spfe¿ to have that point argued and precedents sought for before they would order defendant to answer.

The question has been very fully discussed by counsel on both sides. For the complainant it was contended that the husband was bound to maintain and provide for his wife, as well duringhis life as after his death. That he was under a moral obligation to do *so;*that it was a part of the marriage contract, and the court would compel him to it. That this suit was not *ex delicto*as for a tort; but *ex contractu*for a breach of that contract; and therefore that a suit for alimony would survive against executors as well as for any other contract; hut even admitting it did not generally survive, it ought under the peculiar circumstances of this case. For the defendant it was insisted, that suits for aliinony or separate maintenance do not survive. It was admitted that the court may allow separate maintenance during the life of the husband Nevertheless he was only liable where there .was a divorce, a *mensa et thoro*; and as incidental to a . decree for that purpose. That the causes of divorce w.ere purely personal, and cannot be decreed after the death of one of the parties ; that complainant forfeited or lost her claim by not pm-suing it in the life of her husband; and that where a party with a full knowledge of his rights, sleeps over them, the court will consider it as an abandonment or re~ linquishment of them. With respect to the power of this court to allow a separate maintenance, where a proper case is made out, that is not to be questioned. It has been exercised and must continue to be exercised, bécausé a wife would be otherwise without "redress, there being no other court in this country competent to it.

This question must be decided on general principles and not on the particular circum stances of this case. It is plainly and simply whether a wife who applies for alimony or a separate maintenance ought not to bring suit against her husband in his lifetime *1*The very idea of -ali*207*mony*or a separate maintenance, admits that the husband is alive, and refuses to perform the contract which the law imposes on him of maintaining and supporting his wife. A suit must therefore be instituted against him personally, charging him with a viclation of his contract, and stating particularly ill usage on his part as a ground for the application for a separate maintenance. He is then called upon by the process of the court, in which the suit is commenced, to answer the charge. Upon his answer and the proof adduced, depends the decree that is to be pronounced. Hence it. is evident, that the suit must be brought against him personally, because in the Ecclesiastical Court, there must be a divorce a *mensa et*thoro, previous to the allowance of alimony, and a sentence of divorce cannot be given in any case where either husband or wife is dead. A decree cannot be made in this court against a defendant where his misconduct is the charge for the foundation of such decree, unless he is brought into court, to answer the charge, except indeed he absconds, in which case, the court will make some provision for the wife, till he returns. That the suit for alimony is for a *tort*and altogether personal, is further illustrated by its being brought against the husband for ill usage, for depriving the wife of her conjugal rights, such ■ as driving her from bed and board, and refusing to support her. What acts can be more tortious than those? None'; not even beating her. Such conduct of the husband, being proved, terminates in-a decree in the Ecclesiastical Court, for a divorce a *mensa et*thoro, and an allowance of alimony ; or in this court a separate maintenance, during their separation only; for this court has no right to decree a perpetual separation. A very strong ground for the court not sustaining this suit is, that no precedent has been produced of a similar case :• whence it may be very fairly and justly inferred, that no suit of this kind has ever been brought from a thorough conviction that it could not be maintained ; for if such a suit had been instituted, some determination on it would certainly have been found in *208the books. The singularity of such a case would unques» tionably have attracted the attention of all the writers on tjjjs su.i <ject, and the diligent researches of complainants counsel would undoubtedly have brought it to light. — It was therefore with that view that the court desired to have the question fully discussed. When differences arise between husband and wife, when their mutual resentments must be considered of so serious a nature as to induce a separation, it is reasonable to suppose that she would institute her suit with promptness, and prosecute it with vigor ; but if she remains wholly passive during his life, and makes no application for a separate maintenance till several years after his death, the court will consider such conduct as an abandonment or relinquishment of her rights. In almost all cases the law has fixed the period within which suits of various kinds shall be brought, and where the law is silent; the courts reasoning from analogy, have limited the time for prosecuting suits of a similar nature. In cases of tort, the law has fixed twelve months for bringing an action at law. In a case like the present,, which is also a tort, if the wife does not commence her suit during her husbands life, the court would not interpose its aid for the best of reasons, because the offender, (if he was one) is no more. ’ He is in his grave ; he is incapable ofausweringto the charge which is made against him. The violation of contract in the case under consideration, is of thirty years standing. Both the parties have lived in the state withih a few miles of each other, during the whole of that period, until his death, and no steps taken by complainant to obtain redress for the injury, except at the commencement of these differences *%*some conversations were then had on the subject, and proposals made, which were broken off; the whole business was then relinquished, and nearly five years after her husband’s death this suit was instituted against his executor to be allowed a separate maintenance for upwards of 20 years back: That complainant has not been without a maintcnace, although not from her husband, appears from *209her own bill; for within two years after their separation, her father died and left 1600/. in the hands of trustees, to be applied to her sole use, which it is to be presumed she has uniformly received the profits of; and since her husband’s death she has received a very liberal allowance for dower out of his estate. To allow of such stale demands as the present, after so great a length of time has elapsed since the original cause of suit, and so many years after the death of a party, might be attended with the greatest inconvenience and most dangerous consequences. It would be putting it in the power of the living to accuse the dead of the grossest misconduct, and it is more than probable that an executor might be wholly unacquainted with circumstances, and therefore incompetent to repel the charges or make a proper defence; whereas if the husband was alive, it is possible he might be able to assign good and substantial reasons for his conduct, and rebut the accusation by the testimony of witnesses. No one ought to be condemned unheard. *Audi alteram partem*is the language of reason^ of common sense, and of the law: but how can the person accused be mow brought into this court to make his defence. *Expedit Meipublicce ut sit finis*litium, is a maxim that has prevailed in this court in all times. Laches and neglect are always discountenanced, and a Court of Equity which is never active in giving relief against conscience or public convenience, always refuses its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Upon the whole of the case, the court are unanimously of opinion that no precedent being shown wherein the court has given relief in a case similar to the present, they will not make one. That the demand made'by complainant for an allowance is altogether of a personal nature *;*that it did not arise *ex*contractu, but wholly *ex delicto;*and therefore does not survive' against the executor.

The bill must be dismissed.