Mowatt v. Graham — 1 Edw. Ch. 575

Majority

p. 575

Mowatt and others vs. Graham and wife.

Headnote

Where a wife’s property is involved in a suit, she must join in a petition for maintenance pendente lite ; and it must not only appear tobe done with her consent, but also clearly show, that the money is wanted for maintenance. Therefore, where a petition was signed by the solicitor of the husband and wife and sworn to by the husband only and merely stated “ a necessary occasion ” for the allowance: the same was deemed insuEcient.

April 1, 1833.

This bill was filed against Francis Graham and wife, by the daughters and son-in-law of the latter, claiming an account as children of one Grayson an intestate who had been the first husband of Mrs. Graham. She was entitled as his widow; and an order had been therefore entered allowing the defen- . . ° dants maintenance out of money m court.

This order had not been acted upon for some time; and a petition was now presented, on behalf of the defendants, asking for a continuance of the maintenance. Although it was made out in the name of the two, yet it was merely signed by the solicitor for the defendants and sworn to by Mr. Graham alone. It recited, that the petitioners private estate, not involved in this suit, was invested in various landed properties in the State of New York ; and, that they had not received or applied for a continuance of the aforesaid order of maintenance, but that they now had necessary occasion for the same.

Mr. G. O'Connor'■ moved on the petition.

Mr. C. G. Troup, opposed.

I cannot make an order upon this petition. The' estate out of. which the advance roquked, >«

p. 576

the wife’s property; and the court will not allow the husband to have it, unless she unites in the application and freely consents. The petition must be looked upon as Mr. Graham’s-; for, Mrs. Graham does not join by either signature or oath.

And even if she were consenting, still there would be a difficulty. The court is not in the habit of advancing money out of funds in court, except for maintenance and support. The petition merely states “ a necessary occasion ” for the allowance ; and what that may amount to, does not appear. A petition, in such a case,- must clearly show the grounds of requiring money for maintenance and support. I must dismiss this petition, with costs.