
    STEPHEN ROGERS vs. SAMUEL VINES.
    Where, iu a decree of divorce, alimony is assigned to the wife in certain specific articles, as, for instance, slaves, tire wife’s right to the enjoyment of this property only continues until a reconciliation or until the death of either party. And during the separation, the provision for alimony may be altered, at the discretion of the Court, upon any change of circumstances.
    Appeal from the Superior Court of Law of Greene County, at the Spring Term, 1846, his Honor Judge Manly presiding.
    This was an action of Detinue for six slaves, which was decided upon the following case agreed. Elizabeth Rogers, then the wife of the plaintiff, upon her libel in the Court of Equity, obtained in 1837 a divorce from bed and board; and it was decreed further, that she should have “ alimony and a separate maintenance of the estate of her said husband ; and the Court doth allot as her alimony and separate maintenance, one-third of the rent of a certain tract of land and mill conveyed to the defendant by, &e., and the negroes Esther, Wilie and Mary; and for the purpose of securing the payment and enjoyment of the said alimony, the Court doth further decree, that the defendant deliver to the said Elizabeth the said negroes within five days and the decree then provided for receivers to lease the land and mill, and directed them to pay one-third of the rent annually to the wife, and the residue to the husband. The wife received annually during her life, the sum of $60 for her share of the rents. The negroes were delivered according to the decree; and, being a woman and her two small children, they were, taken together, unprofitable to Mrs. Rogers, and she sold thorn, to the defendant on the 13th of August, 1838, for $1000, then paid to her. The other three ne-groes sued for, are the issue of Esther, born since the defendant’s purch'ase. Elizabeth Roger’s died in May, 1845, and, after the defendant refused to give up the ne-groes, the plaintiff brought this suit. It was agreed, that, if the Court should be of opinion the plaintiff was entitled to the negroes, there should be judgment for him lor certain sums as the values of the several slaves and damages, and if he was not so entitled, then that there be judgment for the defendant.
    The Court gave judgment for the plaintiff, and the defendant appealed.
    
      Badger, for the defendant.
    
      J. IT. Bryan, for the plaintiff, submitted the following argument:
    Alimony is an allowance for maintenance of a wife from year to year. 5 Eng. Ec. Rep. 129 — note to DeBlaquiere v. DeBlaquiere, Poynter on Mar. and Div.
    
    The divorce a mensa et thoro does not dissolve the marriage contract, and neither the rights of the husband of wife as it respects property (except only such as ^acquired by the personal services of the wife) are afFected by it. Reeves Dom. Rel. 209. It does not preclude the wife from her dower. Co. Lit. 32 a. 10 Eng. Com. Law. Rep. 85. Lewis v. Lee.
    
    The decree of the Court, divorcing a mensa et thoro? does not impose any obligation upon the parties to live separately — they can come together again by mutual consent and no conveyance- is necessary to vest title in the husband in the property allotted to 'the wife for her separate maintenance — even where by statute a written transfer is required.
    The husband still retains his marital rights in a great degree — they are only partially suspended and the policy of the law encourages the re-union of the parties.
    If a legacy be given to the wife in this state'of separation, the husband may receive or release it. Bacon, Ah. Baron and Feme D. If the faculties of the husband increase, the alimony may be increased by the spiritual Court, and e converso, which shews that her interest in the allowance for alimony is not absolute, but may b© increased or diminished according to the changing circumstances of the husband or wife — it is in truth an allowance to continue during separation only; and that is the very essence and definition- of alimony. Poynter 85. 2 Kent. Com. 127.
    There is no essential difference in principle between1 the doctrines held here and in England, on this subject. 2 Kent. Com. 128.
    The alimony m this case is allotted under the latter c-lause of the statute : “ by assigning to her separate use such part of the real and personal estate of the husband’ as the Court shall think fit, not exceeding- one-third part &c. which shall continue until a reconciliation shall take place between the parties.”
    This is by way of defeasance of her estate. It has the qualities and capacities of a life estate — it may endure for life, but, if the parties be reconciled, it shall cease, so that it certainly does not enlarge the separate estate into absolute property or a fee. The Court may assign a third part of the real estate — the wife is still entitled to dower, because the marriage subsists. Then upon the death of the husband, the heir, upon the supposition that the wife has a fee in the real estate assigned for alimony, would be almost ousted of his inheritance.
    By sec. 11, she is entitled absolutely to her earnings — ■ the acquisitions of her industry and management. The allowance is for her maintenance from year to year, which is presumed to be expended, and the law now makes a discrimination between that fund so specially allotted, and what she may thereafter acquire by her own industry, as by descent, devise, &c.; and this property may, on her death, be transmissible. Thus, by the rule “ expressio unius est exclusio alterius,” exempting' from transmission on her death, the property assigned for her alimony.
   Ruffin, C. J.

The question is, whether, when slaves, or other specific part, of the husband’s estate, are assigned to a wife for alimony, she has the absolute property in them. For the defendant it wras contended, that she had, by force of the 3d section of the divorce act, Rev. St. c. 39. That authorizes the Court to allow her such alimony as her husband’s circumstances will admit, not exceeding one-third of the annual income or profits of his. estate or occupation, or to assign to her separate use such part of the real and personal estate of the husband as the Court shall think fit, not exceeding one-third part thereof, as the justice of the case may require, which shall continue until a reconciliation shall take place between the parties.” It was argued, that,'as the profits of specific property are uncertain, and especially land in this State, and an increasing family of slaves, under the management of a woman, the Legislature must be supposed to have intended for her a greater benefit than the labor merely of the slaves and the products of the land during her life. This was insisted on the more, as being supported by the terms in the act “ to her separate use,” that being a phrase well known in the law, and to be received in the sense in which it would be, if contained in a will or deed. And it was thence concluded that the wife had the property in the slaves, or, at least, the jus disponendi. But the Court cannot place that construction on the act. We think the wife had no estate in the slaves, but that the personal enjoyment of them only was secured to her during her life, at most, and subject to cease upon a reconciliation, or be defeated by the order of the Court.

The act gives alimony. Now, “ alimony” in its legal sense may be defined to be that proportion of the husband’s estate, which is judicially allowed and allotted to a wife for her subsistence and livelihood, during the period of their separation. Poynter on Marriage and Divorce, 246. Shelford on Mar. and Div. 586. In its nature, then, it is a provision for a wife, separated from her husband ; and it cannot continue after reconciliation, or the death of either party. There is no occasion for it after the death of the husband ; for she then becomes entitled;, to dower and a distributive share, though, divorced??^ mensa et thoro; unless, indeed, she should lose dower by leaving her husband and living in adultery. Go. Lit. 32, 33. Moreover, the decree for alimony vests in the wife no absolute right to the allowance, whether it consist of money or specific things ; for, besides that it ceases upon reconciliation, it may be changed from time to time, and reduced or enlarged, in the discretion of the Court. Otway v. Otway, 2 Phill. 109. Foulkes v. Foulkes, 3 Hagg. Ec. R. 329. The phrase “ separate use” was not, as we think very clearly, used in the technical sense imputed - to it, but it means merely the personal use or separate enjoyment of the wife, while living away from her husband, and, in that sense, having the separate use of the property.' If it had been intended, that, as to the property assigned for alimony, the wife should substantially be a feme sole, the intention would have been/declared in language as clear and explicit as that in the 11th and 12th sections touching her own acquisitions. Those sections expressly give the divorced wife the power of holding the acquisitions of her own industry, and donations to her, against her husband and his creditors, and of disposing of them ; and upon her death, without having disposed of them, they are transmissible as though she were unmarried. There is a marked distinction, therefore, in the manner in which the Act speaks concerning the wife’s rights in property made by her labor, or bestowed on her by friends, and in that the law assigns as alimony out of her husband’s estate. The formér is her property to all 'intents and purposes — to be enjoyed, sold, or given, as if she were sole. The latter is a provision for her livelihood, while she is the man’s wife and lives apart from him. This is the construction from the legal signification of the term “ Alimony” by itself; and especially when contrasted with the precise provisions respecting her rights qver her own property. But other parts of the Act prove the correctness of this construction. The 10th section, for example, .treats “ alimony” and “ separate maintenance” as synonimous, and shews the sense in which “ separate use” in the 3d section is to be taken. The provision, too, that her separate use shall continue until reconciliation is absolutely inconsistent with a power of sale in the wife. For, either the sale would prevent the re-vesting of the property in the husband upon a reconciliation, which would defeat the policy of the Legislature, and, indeed, directly contradict the act; or the wife would have the power of defeating her sale by returning to her husband, which the Legislature could never intend. Besides, the second section goes a little beyond the third, as to the period for which the alimony shall continue, by saying that it shall be “ as long as the justice of the case may require” : thus fully preserving the idea of alimony, as defined by the common law, that it may be varied as may seem meet to the Judge from the change of circumstances, and thence shewing that the wife cannot have the power of disposition of specific things. No doubt the Court is not restricted to a provision out of the income, though that is the usual mode of making it. A sum in numero may be decreed to be paid annually, and the husband’s estate may, under the 10th section, be sold to make it- The, circumstance, therefore, that the specific property may not yield adequate profits, cannot be taken into consideration in interpreting the act, as it is in the discretion of the Judge to assign property or a pecuniary allowance. There is another consideration arising out of the statute of distribution, which is strongly opposed to the argument for the defendants. TJpon the intestacy of a husband, or the wife’s dissent from his will, she is entitled to dower of one-third of his land, and to a child’s part of his clear personal property. Now, the Court can, without regard to the number of children, assign the third of the real and personal estate as alimony, and might in some instances be the more inclined to assign a full third, to her when the. children are numerous, that she might keep house and provide nurture for the children, whom- the father neglected duly to maintain. This is all very well, if alimony determines with the death of either party. But if' an absolute property enures to the wife in the things assigned for alimony, her share of the estate, instead of being a child’s part, might be thus made four or five times as much, and thus defeat the statute of distributions ; which likewise could never have been intended.

The true principle therefore is, that as the separate enjoyment of the specific things is given as alimony, in lieu of money, it can endure only as long as an allowance in money would. There is no more reason for holding that the wife’s right to the negroes was absolute, than that one-third of the rent of the real estate should be paid to her in perpetuo. Her right is, by its nature and the terms of the statute, limited to the period of separation of the husband and wife, and it terminates by the death of either.

Per CuRiam. Judgment affirmed.  