dissenting.
I do not think the clause in the section of statute quoted in the majority opinion, viz., “and it may decree costs against either party, and award execution for the same,” should be construed as enlarging the power of a married woman to contract for the payment of an attorney’s fee in a divorce suit, so as to make her personally liable upon such contract. If at the time of instituting the suit she owned a separate estate, I concede that she might make a contract specifically charging such estate, but I do not think she is competent to then, while still under the disabilities of coverture, and not possessed of any separate *413estate, make a contract which would hind her personally and render after-acquired estate liable for the satisfaction of such contract; and that this would be true whether such acquired estate be by inheritance (Kocher v. Cornell, 59 Neb. 315) or from an allowance by the court of alimony in a divorce suit. At the time of employing counsel to defend such suit, she would still be under the disabilities of coverture, without separate estate of her oavu and the estate from Avhich the alimony is to be paid vested in her husband. Moreover, section 12, ch. 25, Comp. St. 1909, quoted in the majority opinion, recognizes the liability of the husband for the expenses of the wife in either prosecuting or defending a divorce suit. I think this statute not only recognizes the duty on the part of the husband to pay these expenses incurred by the wife, but also recognizes the further fact that the estate which is then vested in the husband is one in which the wife has a certain though inchoate interest, and that it would be unjust to deprive her of a sufficient amount of such community property to enable her to litigate with him the question as to Avhether or not he has violated the' marriage contract. While I concede that the authorities are conflicting upon this point, I think the reasoning of Cook v. Walton, 38 Ind. 228, and the other eases in harmony therewith, cited in the majority opinion, state the better rule and should be followed.
The limitations upon the powers of a married woman to contract are founded upon reason and a sound public policy; and I cannot conceive of any case Avhere her rights should be more jealously safeguarded than in a divorce suit. In such a case she has (or thinks she has) been grievously wronged by her husband. She is without means to employ counsel to assist her in obtaining her rights. Her husband has the title to and possession of all of their community estate. She appeals to a lawyer for assistance. He is familiar with the statutes and knows that he can protect himself by obtaining an order from the court requiring the husband to pay him a reasonable *414attorney’s fee in such divorce suit, and I do not think he should be permitted to refrain from thus protecting himself and then seek to recover from the wife a portion of the moiety awarded to her by the court as alimony. I think this never should be permitted, unless it clearly appears in the decree of the court that the alimony awarded to the wife is intended to include the services of her attorney. The clause in the majority opinion, - “If, however, the husband is worthless, and the wife has no property, the action is denied her, unless she is allowed the ‘means whereby’ she can maintain her suit,” does not appeal to me for the reason that, to the honor of our profession be it said, there is probably not a gentleman in the profession who would not come to the relief of such a woman in her extremity.
It is a well-known fact that in the larger cities the procuring of divorces is an “industry” on the part of a certain class of lawyers. The majority opinion would leave the women who had been caught in their nets at the mercy of these divorce sharks, as they would invariably demand from their clients a portion of the pittance awarded as alimony, as an attorney’s fee, in addition to what may have been previously allowed by the court “as costs.” It is true that in such a case, if the victim should apply to the court in which the case had been heard, it would promptly make the attorney disgorge the excess; but very few of such unfortunate women would know that any such avenue of escape from the extortion of their attorneys was open to them.
Reese, C. J., concurs in dissent.