In 1905 William H. Farnham died, at Palmyra, N.Y., leaving him surviving as his only heir-at-law and next of kin, his son, Louis S. Farnham. He left a will, which was admitted to probate, in which he gave and devised all his estate, real and personal, in trust to John K. Williamson, to use the income therefrom for the support of his widow and son during their joint lives and the life of the survivor, and upon the death of the survivor to pay and distribute what remained to and among his heirs-at-law and next of kin in the manner and proportions prescribed by law in case of intestacy. The wife of the testator predeceased him. In 1910 the son married the defendant at Kansas City, Kansas. He died June 5, 1917, leaving him surviving the defendant, his alleged widow, and William H. Farnham, 2d, the only issue of the marriage. The plaintiff Elizabeth Cranmer is a sister of the testator and the other plaintiffs are his nephews. The action is brought under section 1747 of the Code of Civil Procedure for the purpose of procuring a judgment annulling the marriage of the defendant to Louis S. Farnham, on the ground that at the time the ceremony was performed the latter was incapable of entering into the contract by reason of his then being a lunatic. After issue had been joined, the defendant moved for alimony and counsel fee. The motion resulted in an order allowing defendant $100 per month alimony during the pendency of the action and $750 counsel fee, such sums to be paid from the funds in the hands of the trustee under the will of William H. Farnham. An appeal was taken to the Appellate Division, fourth department, which affirmed the order, but granted permission to appeal to this court, certifying the following question: "Had the court power to make the order appealed from?" *Page 158 
I am of the opinion the orders appealed from should be reversed and the motion for alimony and counsel fee denied. There is no authority, so far as I am aware, justifying the making of such allowance, nor do I believe the court had power to make it. Alimony and counsel fee can only be allowed when the relation of husband and wife exists. The defendant has no husband. He died in June, 1917, and after his death the court had no power to make an order allowing alimony and counsel fee in an action brought to annul the marriage. If the marriage were a valid one, then the statute defines what interest the widow takes in the husband's estate, and that interest is substituted for and takes the place of the obligation resting upon him, prior to his death, to support her. The obligation to support and maintain is the underlying principle which justifies the granting of alimony and counsel fee, when the marriage relation is attacked. The plaintiffs, however, stand in no such position to the defendant. They are strangers to her. The statute clothes them with authority, as interested parties, to maintain an action to test the validity of the marriage, and they are under no more obligation to furnish her with means to defend the action than they are to support her. She is not a privileged suitor against them, but only against her husband while he lived.
There are several other ways in which the validity of a marriage may be attacked, e.g., action to admeasure dower; to partition real property; to distribute or administer the personal estate. It has never been held, so far as I am aware, after a diligent search, that when thus attacked, alimony and counsel fee can be given out of the property involved. This court has frequently applied this rule and held that it is only where the parties to the action stand in the relation of husband and wife that the latter is entitled to alimony and counsel fee.
In Collins v. Collins (71 N.Y. 269) the court held that in order to authorize such allowance it must be admitted, *Page 159 
or proof presented sufficient to authorize the court to determine, that the applicant "stands in the relation of wife to the party against whom the application is made."
And in Lake v. Lake (194 N.Y. 179) it was held that such an order must primarily rest upon the existence of the relation of husband and wife; "unless that relation is sustained by the parties there is no basis for the order."
But it is suggested, not by counsel, that this is an action to annul a marriage and, therefore, a different rule applies; that independent of the statute there is inherent power in the court to make the allowance. Undoubtedly, where the husband attacks the validity of the marriage, and seeks to have it annulled, there is implied power in the court to award the wife, during the pendency of the action, sufficient funds from his estate to pay her living expenses and also counsel fee to enable her to defend the action. (Higgins v. Sharp, 164 N.Y. 4; Griffin v. Griffin,47 N.Y. 134; North v. North, 1 Barb. Ch. 241.) But where the wife brings an action to have the marriage annulled, it has been held that the court has no power to award alimony and counsel fee. (Jones v. Brinsmade, 183 N.Y. 258.) The principle underlying that decision is that if the wife succeed, the decree nullifying the marriage relates back to the contract of marriage and the parties in that event are in the same position as if they never had been married; in other words, that the wife having elected to rescind the contract, can claim nothing under it.
What was said in Rockwell v. Morgan (13 N.J. Eq. 119) is quite applicable here. That action was brought to admeasure dower and it was sought to have an allowance made out of the property involved. The learned chancellor said: "I have been unable to discover any principle upon which the relief asked for can be granted, nor have I found any case which supports the application. It is simply a request for maintenance out of the property in question during the progress of the controversy. * * * *Page 160 
In a controversy with her husband it is just that she should have the means of enforcing her claim, or of testing its validity. But the doweress is not under coverture. The claim is not against her husband, nor even against his estate. * * * But what stronger claim has she in equity against her husband's children than she would have against a stranger? She clearly has no claim in this court to alimony or maintenance from the children. I know of no case in which this claim is allowed, except as against the husband himself, and that only as incidental to a bill for divorce or other relief against the husband * * *."
The action, as indicated, is to annul a marriage. The wife is defendant, but the adverse party is not her husband and the estate out of which she asks for the allowance is not that of her husband. The property never belonged to him. His only interest therein was the right to the income therefrom. The title is in the trustee appointed by the will of William H. Farnham. If the plaintiffs succeed in the action the property will belong to them, and if they fail then the property will belong to the infant son of her deceased husband. Upon what possible theory can the property of a third party be summarily taken from him and given to another? Is the title to property so insecurely protected? I do not think so.
There is another reason why this order is erroneous though I prefer to place my decision upon the ground already stated. The property from which the allowance is directed to be paid is in the hands of a trustee, who is not a party to the action. The court has no jurisdiction over him, nor has it any jurisdiction over the fund which he holds. Before the same, or any part of it, can be taken from him he is entitled to his day in court.
The orders of the Appellate Division and the Special Term should, therefore, be reversed and the motion for alimony and counsel fee denied, without costs. The question certified is answered in the negative. *Page 161 