Opinion by
Porter, J.,
The opinion filed by the court below, which will appear in the report of this case, so fully states the facts and gives reasons so sufficient for dismissing the libel that we deem extended discussion of this appeal unnecessary. These parties entered into a written agreement, on August 30, 1907, to live separate and apart “for the space of two years from the first day of September and so on from year to year thereafter, unless either party hereto shall have given the other party at least sixty' days’ written notice prior to the expiration of any . year óf his or her intention or desire to terminate said agreement.” The libelant covenanted in this agreement to pay his wife the sum of $30.00 per month for and during the term of said separation, “the first payment thereof to be made on the first day of September, 1907, and all subsequent payments to be made on the third day of each month thereafter, during the existence of said separation, or the existence of this agreement.” The appellant filed this libel, on November 25, 1912, praying for a divorce from the bonds of matrimony, upon the sole ground of a willful and malicious desertion, alleged to have been persisted in from August 30, 1909. The libelant testified before the master, on June 9, 1913, that he had, under the agreement for separation, paid his wife not only the $30.00 per month but $20.00 or $25.00 per month besides, “right down to date;” that is down to June 9, 1913. It thus appeared that the ap*127pellant treated the agreement for separation as still in force and complied with its terms, and there is nothing in the evidence to indicate that he is not still so doing. When parties are living apart under such circumstances and under an agreement containing such covenants, it is incumbent upon the one who asserts that the separation has become- a willful and malicious desertion upon the part of the other party to the agreement, to show that the party making the assertion has given a distinct and unequivocal notice to the other party of an election to terminate the agreement.. There was no evidence of any such unequivocal notice in the present case. The letter written by the appellant to the respondent, on August 30, 1909, did not in express terms nor by implication terminate the agreement to live separate and apart, all that it did was to suggest that the parties should endeavor to effect a reconciliation. This appellant has never taken proper steps to terminate the agreement, and his own testimony shows that he still considers it in force; the parties would meet, attend theaters and social functions in company and the libel-ant all the time continued voluntarily to furnish his wife with money in order to enable her to live separated from him. The testimony in this case clearly indicates that each of these parties is desirous of being divorced and gives rise to the reasonable inference that this libel was filed in pursuance of an agreement between them. The appellant testified that the respondent came to his office to see him, in February after this libel was filed, and that she then gave him voluntarily the letter which he had written to her in August, 1909. The mere fact that the parties desire a divorce does not vest the courts with jurisdiction to so decree, the burden is upon the libelant to establish by satisfactory evidence the facts which, under the statute, entitle him to a divorce, for the very cause alleged in his libel.
The decree is affirmed and the appeal dismissed at cost of the appellant.