
    Mabel P. Irwin, petitioner, v. Ralston T. Irwin, defendant.
    [Submitted December 1st, 1025.
    Determined December 17th, 1925.]
    1. While periodical payments for a wife’s support as stipulated in a separation agreement between husband and wife may be enforced by the wife against the husband, by such agreement the wife cannot preclude herself from invoking the aid of court to obtain more than has been agreed upon in the event of the husband's subsequent adultery and existing needs for a greater amount for the wife’s support.
    2. The same is equally true where, pursuant to the terms of a separation agreement, a sum in gross has been paid in discharge of ihe husband’s duty of support.
    3. Our statute does not empower the court of chancery to award a sum in gross as alimony, and exhibits an intention that the subject shall be continuously dealt with according to varying circumstances of the parties.
    4. The husband’s ability to pay for the support of his wife and the justice of the wile’s enjoyment of her right are subject to the change of circumstances which a court cannot anticipate, and, hence, complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation.
    5. A wife’s claim for alimony is a purely personal right, and not, in any sense, a property right, a right in its nature not susceptible of either assignment or enjoyment by her in anticipation.
    6. The conception of alimony as a just expression of matrimonial duties renders it impossible for a husband to purchase immunity from future liability, should conditions arise in which justice impels a reassertion of the rights of the wife.
    7. Alimony awarded after the payment of a sum in gross under a separate agreement.
    On final hearing on petition for divorce and alimony.
    The petition in this snit charges defendant with adultery, and prays for a divorce a vinculo matrimonii and alimony.
    The evidence establishes the fact that defendant is guilty of adultery as charged.
    The only question for present consideration is whether petitioner is entitled to alimony.
    September 16th, 1913, a decree of divorce a mensa el thoro was entered in this court in favor of petitioner and against defendant. In that decree defendant was ordered to pay to petitioner until the further order of the court for her support and the support of her minor child $25 per week. April 8th, 1915, without sanction of court, a formal agreement (in general form a separation agreement) was executed between petitioner, a third party as her trustee and defendant, in which $3,375 was agreed upon as a sum in gross to be paid by defendant in full satisfaction of all future claims against defendant for support of petitioner and her son. The amount so agreed upon was paid to the trustee and thereafter paid to petitioner. At this time the son has attained his'majority and petitioner is without means, and is again in need of support from defendant. No claim is urged that the engagements of petitioner and her trustee were not intelligently made.
    
      Mr. Lewis Siarr, for the petitioner.
    
      Messrs. Endicoll & Endicoll, for the defendant.
   Leaking, Y. C.

No adjudication in this state has been brought to my attention in which- it may be said that an agreement between husband and wife contemplating their living apart and stipulating the amount the wife shall be entitled to receive in satisfaction of the husband’s duty of support, has been recognized as operative to withdraw from this court the performance of its statutory duty when granting a decree of divorce for the subsequent adultery of the husband to award alimony to the wife in such amount as shall be found from “the circumstances of the parties and the nature of the case” * * * “fit, reasonable and just.” In Hires v. Hires, 91 N. J. Eq. 366; affirmed, 92 N. J. Eq. 451, adjudications are reviewed which disclose that, while such agreements may be enforced against the husband, the wife cannot preclude herself by her agreement from invoking the aid of the court to obtain more than has been agreed upon, in the event of necessity. Nor can the payment of a gross sum, which the wife has agreed to accept in discharge of her future claims to support, be regarded as standing on a different plane from agreements contemplating periodical payments. In Calame v. Calame, 25 N. J. Eq. 548, it was early held by our court of errors and appeals that our statute1 — now substantially the same as then — does not empower this court to award alimony in gross, and that view has since been given repeated recognition by the same court. That view flows, not only from the fact that our statute exhibits an intention that the subject shall be continuously dealt with according to varying circumstances of the parties, but also from the further fact, as suggested in Lynde v. Lynde, 54 N. J. Eq. 473, that the husband’s ability to pay and the justice of the wife’s enjoyment of her right are subject to the change of circumstances which the court cannot anticipate, and, hence, complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation. Consistently with that view our court of errors and appeals in Lynde v. Lynde, 64 N. J. Eq. 736, has defined a wife’s claim for an allowance of alimony as a purely personal right, and not, in any sense, a property right, as a right in its nature not susceptible of assignment by the wife to another, nor capable of enjoyment by her in anticipation. From this conception of alimony as the just expression of a matrimonial duty, it seems clear that what the court cannot admeasure as a finality the husband cannot limit by the purchase of immunity from future liability, should conditions arise in which justice impels a reassertion of the rights of the wife.

Touching the justice of an order for support at this time, it should be sufficient to say that petitioner is now without means, and the amount paid to her in settlement was less than one-fourth the aggregate amount she would have received had the weekly payments been continued as ordered by the court.

A decree nisi will be advised and the amount of weekly payments as alimony will be determined after an examination of a transcript of that part of the testimony relating to defendant’s income and earning capacity.  