
    Chancery.
    
      Case 34.
    Culver’s Executor vs Culver.
    Error to the Union Circuit.
    
      Husband and wife. Maintenance. Notice.
    
    Case stated.
    
      December 28.
   Chief Justice Marshall

delivered the opinion of the Court.

By articles of agreement in contemplation of marriage, John Culver agreed, in case the marriage should take place, that he would support his intended wife decently and comfortably during his life, and .if she survived him, “she is to have allotted to her out of his estate, a sufficient .sum as shall be ample and sufficient for her support and maintenance during her natural life, to be paid over to her by his executor or administrator,” in consideration of which she relinquished all further or other right in his estate. Upon the death of John Culver, some few months after the marriage, his widow, Frances Culver, filed her bill against Nicholas Culver, as his administrator, and against him and others as heirs of said John, stating that no provision had been made for her in pursuance of the marriage articles, and that she had been expelled from the mansion house and left destitute, without means of support, &c. And before her hill was answered, she filed her petition praying for an allowance during the pendency of the suit. Upon this petition, notice of the application having been served upon Nicholas Culver, named as executor in the will of John Culver, but called administrator in the bill and petition, a motion was made for an allowance as prayed for, and on oral evidence heard in Court, an order or decree was made declaring as the' result of the evidence, that the estate of John Culver appeared to be of the value of $7,000, and the petitioner was not suitably provided for, and directing Nicholas Culver, executor, &C., to pay to her, out of the estate of John Culver in his hands, the sum of $200, for her support for one year from the date of the order. The present writ of error is prosecuted to reverse this order.

The Chancellor has power, after the husband’s death, to cany into effect specifically, an [ante-nuptial agreement, made by the husband with the wife, to provide her a suitable maintenance after his death.

—And as an incident, the Chancellor has the power to order the payment, out of the estate of the husband, of such support to the wife as maybe reasonable, during the pendency of the suit.

With regard to the jurisdiction of the Court to decree a specific execution of the ante-nuptial agreement for a support, we think there cam be no doubt. It is a familiar jurisdiction in the English chancery, and seems to be peculiarly the subject of equitable cognizance, because there is, in truth, no adequate or appropriate legal remedy. The complainant is entitled to. a support for life, and not merely to such damages as a jury may give at the commencement- of her widowhood, in consequence of the refusal of the administrator to pay her any thing. She is entitled to have a sum allotted out of her late husband’s estate, sufficient for her support during life. The objects of the agreement can only be secured by the aid of the power and supervision of the Chancellor.

Then, as the Court of equity has undoubted jurisdiction of the principal object of the suit, the specific execution of the contract for the support of the complainant, and as upon the record as it stands, she is certainly entitled to a support from the estate of her late husband, the power of decreeing an allowance during the pendency of her suit for specific execution, is but an incident of that suit. This principle was, in effect, decided in the case of Graves vs Graves, manuscript opinion Fall Term, 1844; and we think the petition, however it may have been placed on the docket, is but a part of the principal suit.

Morehead 4* Reed for plaintiff'; J. 4* W. L. Harlan for defendant.

Notice of8 days is reasonable and sufficient, of an intended application for allowance out of the husband’s estate during the pendency of a suit ■ for maintenance.

The notice of the application, (eight days,) is deemed sufficient. No statute regulates this particular proceeding, and in the analogous case of an application for an allowance during the pendency of a suit for alimony, five days’ notice only is required by the statute.

With regard to the amount of the allowance, as it is the first made after the death of the husband, and is for one year from the date of the order, it is in effect but little more than one hundred dollars a year. But independently of this view, as the first allowance, it could not be regarded as too large, even if it clearly appeared that $200 a year, during the life of the complainant, would be extravagant in reference to the means of the estate. But we cannot say that it so appears. The contract was, that she should have a sum ample and sufficient for her support. The sum now decreed will, of course, be taken into consideration in the final adjustment of her rights, any deficiency or excess may, and doubtless will, be compensated at the proper time, and certainly there is no such flagrant excess in this temporary allowance, as requires correction by this Court.

As the individual, Nicholas Culver, is sufficiently identified and the decree is against him in his representative character, the fact that he is called executor in the decree and administrator in the petition, is deemed immaterial.

Wherefore, perceiving no substantial objection to the decree, the same is affirmed.  