Whatever may be the law in other jurisdictions, it is settled in this State by authoritative decisions of this Court, that a married woman, who has been abandoned by her husband, can maintain an action in her own name for a, tort. Brown v. Brown, 121 N. C., 8, 27 S. E., 998. In that case it was held that a complaint in which the plaintiff alleged that the defendant had alienated the affections of her husband, and induced him to abandon her and to refuse to contribute anything .to her support, was not demurrable on the ground that it appeared on the face of the complaint that there was a defect of parties for that plaintiff’s husband had not been joined with her as a party plaintiff. Upon an appeal from the judgment on the verdict in that case, 124 N. C., 19, 32 S. E., 320, it was held that “before a parent can be held liable in damages for advising his married child to abandon his wife or her husband, the conduct of the parent should be alleged and proved to be malicious; that the wilful advice and action of the parent in such a case may not be necessarily malicious, for the parent may be determined and persistent and obstinate in his purpose to cause the separation and yet be entirely free from malice — in fact, have in view the highest good of his child.” This principle is applicable not only when *553the defendant in an action for alienation of affection is the parent of the plaintiff’s husband or wife, as the ease may be, but also where the defendant is a near’ relative of plaintiff’s husband or wife. Powell v. Benthall, 136 N. C., 145, 48 S. E., 598. In that case, it was held that the principle is applicable where defendants are the brother-in-law, and sister of plaintiff’s wife. See 30 C. J., p. 1131, and cases cited in support of the test, which is as follows:
“The rule permitting parents to advise their children in good faith applies when the special circumstances require it, in favor of other near relatives of plaintiff’s spouse, and in favor of such spouse’s guardian, but a defendant cannot claim any such protection where the evidence fails to disclose the necessary special circumstances.”
In the instant case, defendants do not admit that they have caused plaintiff’s husband to separate himself from her, nor do they admit that they have caused him to live separate and apart from her, and upon such admissions rely upon the contention that their conduct was not wrongful and malicious. They deny the allegations in the complaint that they caused the separation, or that they have caused its continuance. The burden was therefore on the plaintiff to prove the truth of her allegation with respect to these matters. Gross v. Gross, 70 W. Va., 317, 73 S. E., 961, 39 L. R. A. (N. S.), 261.
A careful examination of all the evidence set out in the case on appeal fails to disclose any evidence tending to show conduct on the part of defendants, or of either of them, which was designed to, or which in fact did cause plaintiff’s husband to separate himself from her, or to 'continue to live separate and apart from her. The fact that he has lived with defendants, making his home from time to time with them, taken in connection with his admitted relationship to them, is not sufficient to show that defendants have alienated his affection from the plaintiff, or that they have caused him to continue to live separate and apart from her. The conduct of defendants with respect to plaintiff’s husband is altogether consistent with a purpose on their part to aid him; the law will not impute a purpose to injure plaintiff, as she alleges. There was no evidence tending to show that either of the defendants have done any wrong to the plaintiff, or that either of them have any ill will or malice toward her. Plaintiff’s unfortunate situation was not caused by the defendants. All the evidence tends to, show that it is caused by the groundless delusion of her husband, due to his unfortunate mental condition. , .,
There was error in the refusal of the court to allow defendants’ motion for judgment as of nonsuit, at the close of the evidence. , The action should be dismissed. To that end the judgment is ,
Reversed.