concurring in result:
I am in accord with the views expressed by the majority in all respects, save in the failure to decide whether or not sec. 20-107, Code of Virginia, 1950, is broad enough to empower a court of equity to extinguish the wife’s contingent right of dower under the circumstances of this case.
As I see it, the proceeding under review is merely a suit by the wife for maintenance and support. The questions before us do not involve the right of either party to a divorce. The husband’s suit for divorce terminated when his bill was dismissed and he did not appeal. The trial court did not decree a dissolution of the marriage, grant a divorce, or adjudge that neither party was entitled to a divorce. The only cause pending before the trial court and before this court, after the dismissal of the husband’s bill, is that instituted by the wife in her cross-bill for maintenance and support. It is a separate and independent proceeding to enable her to obtain the benefits of the marital relation, a relation which still exists with all of its attributes. That the wife had the right to institute such a proceeding is generally recognized. Bray v. Landergren, 161 Va. 699, 706, 172 S. E. 252; 27 Am. Jur., Husband and Wife, *1076§ 402, page 9; 42 C. J. S., Husband and Wife, § 611, page 202.
The clause “and upon decreeing that neither party is entitled to a divorce” was added to § 5111, Code of Virginia, 1919, by Acts of Assembly, 1934, page 515. Prior to the amendment, Judge Crump, in construing § 5111, Code of 1919, on pages 594, 595, McCotter v. Carle, 149 Va. 584, 140 S. E. 670, had this to say:
“This language bestowing the power to consider the estate of the parties in a divorce suit is unmistakable-in its effect and purpose. And it follows as a necessary corollary from what has already been held in this opinion that the authority to deal with the property rights of the husband and wife or either of them is limited to the decreeing of a divorce, and is denied to the court when the application for the divorce is altogether refused. However broad an interpretation may be placed upon the ‘estate of the parties,’ it is clear that, when a divorce is not decreed, the power of the court to consider in any respect the estates or property rights of the parties, whether between themselves or otherwise, is non-existent.
“It is generally held that, under the enabling statutes, the courts in the absence of the grant of express power have no authority to decree upon the estate or property of the parties, when the divorce is refused.” Citing cases.
The amendment of 1934 extended the power of the court to deal with the property of the parties when it decreed that neither party was entitled to a divorce. Thus, in a divorce proceeding after the amendment, the authority given in § 20-107 to deal with the property rights of the husband and wife, or either of them, is specifically limited, in unmistakable language, to a case wherein the court either decrees the dissolution of a marriage, decrees a divorce, or decrees that neither party is entitled to a divorce. When those conditions are not met, the section confers no power on the court to consider in any respect the property rights *1077of the parties. The power is restricted and confined within the limitations prescribed.
In this case, the marital relation still exists, and the wife is entitled to the statutory right of dower given her under § 64-27, Code of Virginia, 1950. That right should not be modified or extinguished by implication.
For the reasons stated, I am, therefore, of opinion that regardless of whether we consider this proceeding as a separate-action for maintenance and support, or as a suit for divorce, § 20-107 is not applicable.
Eggleston, J., joins in this opinion.