Argued October 30th, 1941.
Decided January 29th, 1942.
Refusal of the advisory master to strike those portions of the answer raising the question of the Court of Chancery's jurisdiction to decree specific performance of a separation agreement affirmed.
On appeal from an order of the Court of Chancery.
Messrs. Lum, Tamblyn Fairlie, for the complainant-appellant.
Mr. Charles Hershenstein, for the defendant-respondent.
Complainant-appellant filed her bill for construction of certain provisions of a separation agreement between her and her husband, the defendant-respondent, made during the pendency of a suit for maintenance, and for a decree for the specific performance of the agreement.
Motion was made to strike those portions of the answer which raised the question of the court's jurisdiction to decree specific performance of the agreement. The advisory master declined to strike the answer, relying upon the decisions of this court. Second National Bank v. Curie, 116 N.J. Eq. 101; Aiosa v. Aiosa, 119 N.J. Eq. 385; Phillips v. Phillips, 119 N.J. Eq. 462; Richman v. Richman, 129 N.J. Eq. 114. We think the advisory master was right in so doing.
We regard so much of the opinion of the master as holds such agreements to be "without validity as a contract because beyond the competence of the parties to make it" as not necessary to the decision and it is accordingly not passed upon at this time.
The order under review is affirmed.
For affirmance — CASE, BODINE, DONGES, HEHER, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 12.
For reversal — THE CHIEF-JUSTICE, PERSKIE, JJ. 2.