75 N.C. 70 | N.C. | 1876
The defendant contends that by the proper construction of the statute (see Bat. Rev., chap. 37, sec. 10) the plaintiff is entitled to no alimony pendente lite, until both her separate income and the corpus or capital producing it are exhausted in her support. We think such a construction is too narrow and harsh to the wife, and cannot be supported. The statute provides that if the (71) complaint states facts which, if true, will entitle her to the relief demanded, and it shall appear "that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order the husband to pay her such alimony during the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties."
That the term "alimony" means "income," and not the corpus or capital yielding it, is clear from the proceeding section (9) of the statute in relation to divorces from bed and board, which declares that there shall be given "such alimony as the circumstances of the parties may render necessary, which, however, shall not in any case exceed the one-third part of the net annual income from the estate, occupation or labor of the party against whom judgment shall be rendered."
As the husband, therefore, pays alimony out of his income and not out of his capital estate, so the wife's "sufficient means" whereon to subsist pending the action must, in like manner, be her income and not her capital.
The court has found as a fact that her income is not sufficient for her support and necessary expenses pending this litigation. It then became the duty of the court to order the husband to pay the wife such alimony "as shall appear to him just and proper, having regard to the circumstances of the parties."
The statute relating to divorce and alimony proceeds upon the natural duty of the husband to support the wife as well before as after divorce, and must be liberally construed to express that duty.
Alimony is not itself an "estate" in a technical, legal sense of the word, nor is it necessarily a charge upon the husband's estate. He may have no estate. But alimony is a mere personal charge (72) upon the husband, or a duty imposed upon him, which the courts will enforce against him from time to time, at discretion, compelling the payment thereof from his income, whether he have an estate or not.
His Honor was of opinion that the statute gave him no power to resort to the income of the husband until all the separate estate of the wife, principal and interest, was first exhausted in her support. This is error.
Judgment is
PER CURIAM. Reversed.
(73)