
    John Cox v. Mary F. Cox.
    On hearing of a petition for alimony, filed, after the husband has procured an ae-parte divorce in another State, it is competent for the wife to show that the husband has received accessions of property by inheritance since the date of the divorce, and for the court to take the same into consideration in estimating the amount of her alimony.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Hamilton county.
    This case was here once before, and is reported in 19 Ohio St. 502. It was a petition for alimony, filed by the defendant in error, the late wife of the plaintiff in error, after he had procured a decree of divorce in one of the courts of Indiana. At the time of the procuration of the decree she resided in Ohio, and had no actual notice of the proceeding. No alimony was allowed to her by the Indiana court, and at the date of the decree for divorce the husband was possessed of but little property, amounting to only some three hundred dollars. Upon the final hearing of the petition for alimony,, after the cause had been remanded by this court for further proceedings, evidence was offered on the part of the wife to-prove that the husband had, after the date of the divorce,, and prior to the filing of the petition for alimony received a large accession to his property, to the amount of some twenty thousand dollars, by inheritance from his father. This evidence was objected to by the husband; but the court overruled his objection, and rendered a decree for alimony much exceeding the whole amount of the husband’s property as it existed at the time of the divorce. In receiving this evidence, and in rendering this decree, it is alleged that the court erred.
    
      Thomas Millikin for the motion:
    1. The parties were effectually divorced in 1861; both parties were released. 2d vol. Ind. Stat., page 237, sec. 23. The Indiana divorce was a bar to an application for divorce afterward in Ohio. Cooper v. Cooper, 7 Ohio, 594
    Our Ohio statute makes a foreign divorce a cause of divorce only, where, by the statute of the State granting the first divorce, both parties are not released. 1 S. & O. 511, sec. (2).
    But as this was not the case by the Indiana law, the parties were effectually divorced in 1861, and there was no authority for another divorce in Ohio.
    The Indiana decree was just as effectual as if it had been rendered in Ohio. 19 Ohio St. 512.
    2. John Cox and Mary F. Cox, by the Indiana decree of 1861, having been released from the obligations of the marriage, the claim of alimony must he ascertained solely with reference to the condition of the parties at that time. Bankston v. Bankston, 27 Miss. (5 Cush.) 692.
    This ease was a divorce from bed and board. Mr. Bishop doubts the correctness of this authority, but admits it is the rule in divorce a vinculo. 2 Bishop M. & D. 449, note (1).
    In Mansfield v. McIntire, 10 Ohio, 30, the real estate in which Mrs. Mansfield claimed and obtained dower was owned by her husband before the Kentucky divorce.
    
    If the principle decided by the district court, be correct, what is to prevent Mrs. Cox having (if she survives John ;Cox) dower in his lands acquired in 1863 ?
    The alimony must be ascertained solely with reference t« the condition of the parties in 1861. Then they ceased to be husband and wife, and then the wife was entitled, upon breaking up the partnership, to receive her share of their joint accumulations.
    “ If the husband has no real or personal estate at the divorce, there can be no alimony.” Feighly v. Feighly, 7 Md. 563. See also Latier v. Latier, 5 Ohio, 538; Bouv. Law Dic., “Alimony; ” 2 Bishop M. & D. 478, sec. 478 ; Forrest v. Forrest, 9 Abbott N. Y. 289; 3 Bos. N. Y. 661; 25 N. Y. 501; S. & C. Stat. 312, sec. 7; Shotwell v. Shotwell, 1 S. & M. Ch. 51; O’Donnel v. O'Donnel, Disney’s Rep. 301; Bowman v. Worthington, 24 Ark. 522.
    I insist, therefore : 1. That if Mrs. Cox knew of the pendency of the suit in Indiana before the decree was pronounced, she is barred of her claim to alimony. 2. If she did not know of the pendency of the suit, she is now to be alimented precisely as if she did know of it and had presented her claim.
    
      Caldwell & Caldwell contra:
    There is no rule that will prevent the court, in its discretion, from considering the present value of the husband’s property in estimating the amount of alimony to be allowed the wife. McKarracher v. McKarracher, 3 Yates (Penn.), 56 ; Forrest v. Forrest, 25 N. Y. 520; 8 Yerger, 67; 1 S. & M. Ch. 65; 19 Ohio St. 502.
   By The Court:

: We see no error in this proceeding. The court has a broad discretion in determining the amount of alimony. In a proper ease there is no good reason why the court may not, among other things, look to and regard what the husband has in expectancy, as well as that which he has in possession. Here, however, the court were not called upon to do so. The expectancy had been realized, and become part of the husband’s estate. What was before contingent had now become certain, and the court could then much more justly and fairly determine what, under all the circumstances of the parties, would be a reasonable alimony. Especially is this true of a ease like the present, where, under and other rule, the husband would have it in his power, by procuring an expcvrte divorce, to fix the tíme for estimating her alimony. We think the court had the right, in the exercise of its discretion, to regard the property of the husband as of the date of the exparta divorce, or as of the date of the application for alimony, or both, as under all the circumstances seemed reasonable and just.

The motion is overruled.  