1. Complainant filed her bill for maintenance and after the cause was brought on for hearing she and her husband stated to the court that a settlement might be effected upon a conference of the parties. Thereafter she entered into an oral agreement with her husband whereby he agreed to pay her a certain sum of money, in equal monthly installments, and to deposit shares of stock in a certain corporation to provide such sum from dividends paid on the stock. The agreement was to be incorporated in a final decree of the court hearing the maintenance suit but before it could be so entered the husband died. Held, that the agreement cannot be specifically enforced.
2. The Divorce act vests in the court of chancery power to order suitable support and maintenance for the wife. All agreements for maintenance entered into between husband and wife are subject to approval or modification by the court. The agreement in this case not having been approved by the court of chancery, by reason of the death of the husband, it can never be approved by the court, nor any decree entered thereon.
3. Suits for divorce and maintenance are abated by the death of either party before the entry of a final decree, and a decree entered after such death will be vacated.
4. The company whose stock the husband promised to deposit in order that dividends thereon might be used to provide money to pay the wife under the agreement, not having been made a party to this litigation, there is a further reason for refusing to enforce the agreement upon a suit of the wife.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Vice-Chancellor Ingersoll.
A further reason tending to support dismissal of the bill is that at least one party necessary to the granting of the full relief sought was not in court. It appears by the allegations of the bill that a corporation, namely, S.M. Braunstein, Incorporated, held and still holds the capital stock of the Boardwalk Realty Company which, in sufficient quantity to produce in dividends a sum equal to $10,000 yearly, was to be deposited with the Guarantee Trust Company of Atlantic City. S.M. Braunstein, Incorporated, is not a party to the litigation.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.
For reversal — None.