I concur in the dissenting opinion filed by Stacy, C. J., in this appeal.
The duty, both legal and moral, of a husband to support his wife does not arise out of contract, nor is the right of the wife to support by her husband contractual in its origin. Both the right and the duty arise out of and are incidents of their marital status. Therefore, neither the right nor the duty are subject to contract between the husband and wife, by which the wife is deprived of her right or the husband relieved of his duty. The power of a court in a proper case to order the husband to provide reasonable subsistence for his wife, pendente lite, and to pay her counsel fees, in accordance with statutory regulations, is not affected by the provisions of a separation agreement between the husband and wife. The State as a social agency is interested that the wife shall not be deprived of her right or the husband relieved of his duty.
I think there was error in the order in the instant case, denying the application of the plaintiff as a matter of law.