| Ill. | Nov 20, 1883
delivered the opinion of the Court:
By a decree of the circuit court of Whiteside county, rendered on the 22d of June, 1881, Johanna Lennahan was divorced from her husband, John Lennahan, for his fault, and allowed alimony. Afterwards, on the loth of June, 1882, he died intestate, leaving no child or children, but only certain collateral relatives surviving him as his heirs at law. The original bill in the present case was filed by the widow, Johanna, against those heirs at law and certain claimants of liens, for the assignment of dower, and for partition. Mary O’Keefe, one of the heirs at law of Lennahan, and administratrix of his estate, filed her cross-hill in the case, making Johanna Lennahan, the other heirs at law, and the claimants of liens upon the real estate, defendants, praying for an account of the debts against the estate, etc., that dower be assigned to Johanna, that her decree for alimony be modified or cancelled, and for partition. Issues were made on the allegations of these bills, the cause was heard by the court, and a decree rendered declaring that Johanna was endowed of a third part of the lands; that the heirs at law were entitled to designated interests, subject to mortgage liens, unpaid alimony due Johanna, and the debts of the decedent; that the alimony decreed to Johanna ceased at the death of her husband, and that the lands were discharged from that lien, except .in so far as there was unpaid alimony which had accrued in the lifetime of Lennahan. Commissioners were appointed to assign dower and make partition in accordance with the decree. The commissioners subsequently reported, after assigning dower to Johanna in certain property particularly described, that the lands were insusceptible of division. The court confirmed this report, and, among other things, decreed that Johanna have the proper proportion of the rent of the premises set off to her as her dower, from the date of the decree, etc. On appeal to the Appellate Court for the Second District the decrees of the circuit court were affirmed, and this appeal is from that affirmance.
The first and most important question discussed in the briefs before us is, did the court err in decreeing that the alimony ceased upon the death of Lennahan ?
The decree allowing the alimony is in these words: “It is ordered, adjudged and decreed by the court, that the defendant pay to the complainant the sum of $400, annually, for each and every year, commencing from the date hereof, payable as follows, to-wit: the sum of $50 in forty days from date hereof, the sum of $66.66 on the first day of January, 1882, and from and after January, 1882, until further order of this court, the said’’defendant shall pay to said complainant, on July 1, 1882, the sum of $200, and on the first day of January, 1883, the sum of $200, and a like sum of $200 on the first day of January and on the first day of July of each year. ” A further provision authorizes the issuing of execution for installments in arrears, and makes the decree a lien on the real estate.
It will be observed this allowance is, by the express terms of the decree, only “until further order of this court.” Our statute provides: “When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife * * * as, from the circumstances of the parties and the nature of the ease, shall be fit, reasonable and just, and in ease the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony * * * as shall appear reasonable and proper.” (Rev. Stat. 1874, chap. 40, sec. 18.) This would seem to invest the court with ample power to declare the termination of all alimony, upon the occurrence of facts reasonably justifying such a declaration.
We are of opinion that neither this section, nor the reservation in the decree is consistent with the position contended for by counsel for appellant,—that upon the death of Lennahan the control of the court over the question of alimony ceased, and the decree became thereafter absolute against the estate during the life of appellant. The fact, alone, of the death of the defendant, in many instances would be a most cogent reason'for the interposition of the court to change the terms of such a decree. We have held the court may, under proper circumstances, make an allowance for alimony once for all, and, also, that real estate may be decreed absolutely to the complainant, but that neither of*these is justifiable only under exceptional circumstances, which have been pointed out. But that is not the question here. Here the payment of alimony is ordered to be made in. installments, and the right of revision of the question is expressly reserved, and the only question -is, what effect has the death of the defendant upon such a decree ? In the absence of language showing, unequivocally, that the intention wras to bind the heir by such a decree, we are of opinion that it does not do so, but that its life terminates with the life of the defendant.
By the English law, alimony was but an allowance during the joint lives of the husband and wife, or so long as they should live separately. (Wallingford v. Wallingford, 6 Harris & Johnson, 438 ; Lookridge v. Lockridge, 3 Dana, 28; Clark v. Clark, 6 Watts & S. 85; 1 Blackstone’s Com. 441.) And, notwithstanding alimony in this country is, generally, the allowance made to the wife out of the husband’s estate after a decree of divorce a vinculo matrimonii, and is, by statute, in many respects modified from what it was in ease of divorce a mensa et thoro, in England, we know of no- case in which it has been held to be a debt continuing after the death of the husband against the heir, but directly the contrary was held in O’Hagan v. Executors of O’Hagan, 4 Iowa, 509" date_filed="1857-07-01" court="Iowa" case_name="O'Hagan v. of O'Hagan">4 Iowa, 509, and, as we think, upon sufficient reason. Bishop, in his work on Marriage and Divorce, (6th e'd.) sec. 428, says: “So, by the unwritten rule, alimony can not be ordered for the term of the wife’s life, because it is a maintenance to her, while the husband’s duty to maintain her ceases at his death.”
Granted that, under our statute, the power of the court to allow alimony is broader than it was in England, still, until the power is exercised by the court its mere existence is, to the present question, unimportant, and when it is exercised it must and can only be through its decree, and the decree must, upon its face, show the extent to which the court has exercised, or assumed to exercise, such power. The question in such case is, simply, does the decree, by its terms, charge the payment of the alimony upon the heir? We cannot presume that it does so. The fact, if such it is, must affirmatively, and as we have before observed, unequivocally, appear. Being of opinion that no such order has been made, it follows the conclusion of the court below in that regard was right. We may add, that it would require an extraordinary case to justify the postponement of creditors and heirs to the payment of both dower and alimony, currently, during the life of the divorced wife. In very many cases such an order would be equivalent to an entire appropriation of the husband’s estate.
We are of opinion, however, the court below erred in decreeing that the proper proportion of the rents be set off to her from the date of the decree. It should have been from the date of filing her bill. But this may be corrected by the future decree of the court in finally adjusting the accounts of the parties in interest, without a reversal of the cause. That modification and correction in the decree below will be so made, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.