Majority
p. 117Sarah Cooke v. Calvin Barker and others, administrators cum testamento annexo, of Silas Cooke. 1824. March 30.
Headnote
No part of the fund will be ordered to be paid to a party pending suit, unless a clear balance is admitted, or unless on bill by the wife for divorce.Bill by the widow and legatee of the testator, for an account, &c. The defendant’s answer showed, that questions would arise under the will, involving all the right of the com
p. 118
plainant to the remaining assets, considerable sums having been already paid to her.
The complainant now presented a petition, to be allowed a sum out of the fund in the defendant’s hands, for her support ; and also to enable her to prosecute this suit.
Mr. George W. Kirtland, for complainant.
Mr. Buel, contra.
There are only two cases in which this is done : 1st. In bills for divorce : 2d, Where, upon the defendant’s answer, some part of the fund appears to be indisputably due. But while the whole subject is in controversy, it would be prejudging the case to make such an order, and is beyond the power of the court.
Motion refused.