I am unable to concur in the opinion of the court herein.
The wife in a matrimonial action, brought after the death of the husband by his relatives who have an interest to avoid the marriage, asks the court for an allowance for counsel fee and alimony. The relation of husband and wife existed when the husband died. On general principles of equity, the court should have power to require those who seek to annul a marriage for their pecuniary gain to pay such sums as may be necessary to enable the wife to conduct her defense. Counsel fee and alimony are incidents peculiar to the trial of matrimonial actions. (Lake v. Lake, 194 N.Y. 179.) No express statutory authority being given, the power of the court to make such an allowance is sustained as incidental to annulment actions where the husband brings the action and the wife seeks to sustain the validity of the marriage. (Jones v. Brinsmade, 183 N.Y. 258.) The relation of husband and wife has been terminated, but not dissolved. The husband did not question it. The fact that he is dead does not make the claim for counsel fee inequitable. Why equity should refuse to lay hold of the very fund that the plaintiffs seek to obtain as the result of their attack on the marriage in order to make the allowance therefrom is not apparent. Defendant seeks to protect, not property rights merely, but her status as a lawful wife and the legitimacy of the child and the child's inheritance. (Code Civ. Pro. § 1749, as amended by L. 1919, ch. 202.) Plaintiffs attack such status and such legitimacy to possess themselves of the fund. It seems unjust and inconsistent on these facts to compel the wife to conduct her defense at her own expense. If plaintiffs succeed, the fund will be diminished only to the extent necessary to protect her from oppression and to enable her to present her defense.
But she has no reason for demanding support from the *Page 162 fund or from the plaintiffs. If the action had not been brought, she would have no claim on plaintiffs or the fund for such support and the action creates no equities in that regard.
I am for a decision modifying the order appealed from by striking therefrom the provision for alimony pendente lite, and otherwise affirming it, without costs.
HISCOCK, Ch. J., HOGAN, CARDOZO and ANDREWS, JJ., concur with McLAUGHLIN, J.; POUND, J., reads dissenting opinion, with whom CHASE, J., concurs.
Orders reversed, etc.