
    Hassaurek v. Markbreit, Admr.
    
      Suit for divorce — Section 5700, Revised Statutes — Rights of parties when divorce granted upon wife’s aggression — Wilful absence for three years — Court may adjudge to her share of husband’s property — Parties may agree that husband pay sum every month — His estate bound in case of death, when.
    
    When upon tbe trial of a suit- for divorce tbe court finds from the evidence that the wife has been wilfully absent for more than three years and that the husband is entitled to a decree upon that ground, the court has jurisdiction under Section 5700, Revised Statutes, to -adjudge to her such share of the husband’s property as it deems just and reasonable, and if the parties thereupon agree that such division shall be ¡made by adjudging that he shall pay to her a sum named every month during her life and such agreement is carried into the decree, there is imposed upon him, and upon his estate in case of his death before hers, a valid obligation according to the terms of the decree.
    (Decided June 23, 1903.)
    Error to tbe Circuit Court of Hamilton county.
    Plaintiff brought her action in the court of common pleas to recover from the defendant $600, the sum of six monthly installments which were admitted to be unpaid, and which she claimed to be due her on the following state of facts: In 1881, the late Frederick Hassaurek and the plaintiff were husband and wife, and the parents of .two children. In that year he brought suit for the dissolution of the marriage relation upon the sole ground of the wife’s wilful absence for more than three years. She was personally served in Hamilton county, but did not answer. Upon the hearing the court found that the allegations of the petition were true, and it decreed the dissolution of the marriage relation and awarded to the husband the custody of the children, but providing that the mother should be permitted to visit them at all reasonable times. The decree contained the following provision for the wife: “It is further ordered by the court, the plaintiff having expressed a willingness and desire to make suitable provision for the defendant, that the plaintiff shall pay unto the defendant $1,200 per annum in twelve equal monthly installments in advance beginning January 1, 1882, and continuing so long as the defendant shall live and shall remain unmarried, but said payments shall cease upon her death or remarriage.”
    At the time of the trial of the suit for divorce the husband was the president of the Volksblatt Co., whose capital stock was $130,000 of which he owned $50,000, par value, while its actual value was much greater. This stock was the substance of his estate. From that time until his death he continued to be the president of the company and the present defendant was its manager. From the death of Mr. Hassaurek until now the defendant has been both president and manager. The monthly installments provided in the decree were paid by Mr. Hassaurek in accordance with its terms until his death, which occurred in France in October, 1885. Upon his death the defendant was appointed special administrator; he acted in that capacity and paid to the plaintiff the monthly installments according to the terms of the decree until June 21, 1886, when, the will of Mr. Hassaurek having been admitted to probate, Eunice Hassaurek, with whom he had in the meantime intermarried, was appointed its executrix; and, until her death in May, 1891, she continued to pay to the plaintiff the monthly installments according to the terms of the decree. Upon her death the present defendant was appointed administrator de bonis non with the will annexed; He continued the payment of the monthly installments according to the terms of the decree until July 1, 1899, when he refused to make further payments. From the date of the decree in 1881 until June 1, 1899, the payments were made in dividend checks of the Volksblatt Co., the amounts being charged successively against Mr. Hassaurek as administrator and his children, and this was done with the acquiescence of all against whom the charges were made. The defendant’s refusal to make further payments in 1899 was in compliance with a demand from the executors of the son of the plaintiff, who had died shortly before. When the defendant came into possession of the papers of Mr. Hassaurek he found among them a copy of the decree upon which the plaintiff’s suit is founded.
    In 1891 the defendant filed in the probate court an account of his administration taking credit, among other things, for the amount of nine monthly payments made to the plaintiff just before the filing of the account, and filing with his account receipts from the son and daughter of the plaintiff, each for fifty shares of the stock of the Volksblatt Co. Until after the refusal to make further payments in 1899 the plaintiff did not file with the administrator a claim for money due under the decree, nor did she ever have notice of any intended or actual distribution of the estate of Mr. Hassaurek. She has remained unmarried from the date of the decree.
    The jury were directed to return a verdict for the plaintiff and a judgment followed it. The circuit court reversed the judgment and rendered judgment for the administrator for the reason, as shown by its journal that: “The said court erred in instructing the jury to bring in a verdict for the plaintiff-below and in .refusing to instruct the jury to bring in a verdict for the defendant below, for the reason that the court of common pleas had no jurisdiction to render the judgment sued on in so far as it required the payment of annual installments as alimony beyond the natural life of Frederick Hassaurek without fixing a definite sum from which the installments were to be paid.”
    
      Mr. Judson Harmon; Mr. Alfred C. Cassatt; Messrs. Ernst, Cassatt & McDougall and Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.
    As the wife was defendant in this divorce case and judgment was rendered for her aggression, the rights of the wife were regulated by Section 5700, Revised Statutes. (See the Statutes, 1880.)
    It will be observed that the statute does not contain the word “alimony,” nor does the judgment sued on. The statute authorized the court to adjudge to the defendant such share of the husband’s real or personal property, or both, as it should deem just and reasonable, and this the court did. . If it had jurisdiction to adjudge a sum of money in gross, and this is not denied, it certainly had the power to adjudge the payment of installments which it should find' to be equivalent to such gross sum, and even if it would be erroneous it would not be void.
    It is claimed that this judgment is not merely erroneous, but is void, because the court had no power to adjudge to the defendant the payment of installments during her life, and after the death of the plaintiff. In support of this contention, the claim is made that alimony cannot be made payable after the death of the person charged, and that therefore the court had no jurisdiction to enter this judgment.
    
      But, even assuming that the judgment were here on error, and that any rules applicable to alimony could be applied to it, all of which we deny, nevertheless, we claim that the judgment rendered is a proper one. The overwhelming weight of authority is to the effect that alimony may be made payable during the life of the wife. Stratton v. Stratton, 77 Me., 373; Knapp v. Knapp, 134 Mass., 353; Storey v. Storey, 125 Ill., 608; Burr v. Burr, 10 Paige, 20; O’Hagan v. O’Hagan, 4 Ia., 509; Carson v. Murray, 3 Paige, 483; Miller v. Miller, 64 Me., 484.
    There are a number of cases which hold:
    1. That where the decree does not specifically order the payment of alimony during the life of the wife, it shall terminate upon the death of the husband ; and
    2. That, in a divorce a mensa et thoro, in which the marriage is not annulled and where the alimony is simply equivalent to the support which the husband owes to the wife, the alimony should not be made payable beyond the life of the husband, because the support for which it is a substitute would not have so continued, and because on the death of the husband, the wife is still entitled to her distributive share of his property.
    - 3. But where the divorce is a vinculo the marriage relation is annulled and terminated and the relative property rights of the wife and husband are forever settled; the amount adjudged the wife is not merely in lieu of support; and she is not entitled on the death of the divorced husband to share in his property. Therefore the court in such cases may make the alimony payable during the entire life of the wife.
    The record clearly shows that the decree, as to provision for the wife, was entered by consent of the plaintiff. Of course any judge or lawyer who reads the decree itself, and who knows the manner in which such cases are tried, would be absolutely certain that the decree as to alimony was by consent, and he would not doubt that the amount and the terms and manner of payment were all of them first agreed on by the parties.
    Not only is this true, but the substantial legal evidence set forth above proves that the decree in this regard was agreed to by the parties; and as the wife was clearly entitled under the statute to have the court adjudge to her a just and reasonable share of her husband’s real or personal property, any agreement entered into between the husband and wife was an agreement upon a good and valid consideration.
    1. The decree recites that both parties were in court hy their counsel, and it does not appear that any objection was made by the plaintiff to this particular provision, which establishes acquiescence on his part.
    2. The defendant and his estate paid the sum so provided for a period of seventeen years, which is the strongest possible evidence of consent.
    There is not a scintilla of testimony to contradict this evidence of the consent of Frederick Hassaurek, and we submit that the court was right in finding such consent as matter of law.
    Where there is consent, the authorities are clear that the parties charged under the judgment cannot thereafter set up error in the judgment. In Stratton v. Stratton, supra, this question arose:
    The statute of Maine provided that alimony could not be allowed to the wife on the libel of the husband, and the court undoubtedly had no right to grant alimony to the wife on the libel of the husband, but in the judgment under consideration in Stratton v. Stratton, 77 Me., 373, this had been done. Fletcher v. Holmes, 25 Ind., 458; Crews v. Mooney, 74 Mo., 26; Julier v. Julier, 62 Ohio St., 90; Buck v. Buck, 60 Ill., 241; Storey v. Storey, 125 Ill., 608. This matter has been passed on by this court. Law v. Law, 64 Ohio St., 369.
    We submit that this is not a matter pertaining to the jurisdiction of the court, but that it relates simply to the question of whether or not the court committed error. That question cannot be raised in the present action, no exception haying been taken, no error proceedings having been prosecuted, and the judgment having been complied with for so many years. It is not necessary to cite authoritiés to this court on the proposition that where the court had jurisdiction of the subject matter and of the parties, a judgment rendered by it can not be collaterally attacked, even though it might be erroneous. That has been held on numerous occasions by this court.
    We do not know of a case decided by this court in which the question has arisen as to the validity of a judgment granting relief which was greater, or different from the relief allowed by the statute, but other courts have passed upon it. Johnson et al. v. Mining Co. et al., 78 Wis., 159. This judgment was regularly paid by Frederick Hassaurek and his estate for seventeen years pursuant to its terms. As soon as the estate ceased paying the amount, the defendant in error filed her claim with the administrator, according to law, and upon its rejection entered suit upon her claim.
    We submit that this is a clear compliance with the law, and that any cases which relate to the method of collecting alimony are not applicable hereto, as this is, by the terms of the statute, and by its own terms, a judgment for money.
    The alleged final account of Colonel Markbreit as administrator did not close the estate as to Mrs. Hassaurek or release it from liability to her. The estate was still indebted to Mrs. Hassaurek under the terms of the judgment sued upon. The administrator had due notice of the claim and had recognized and paid the same is it fell due for. many years. He had certified a copy of the judgment which came to him with Mr. Hassaurek’s papers. No matter what sort of an account may be filed, an estate is not settled as long as there are assets to distribute and debts to pay. Weyer v. Watt, 48 Ohio St., 545. The estate distributed to the heirs was more than sufficient to pay this debt after paying all other debts, so it was the duty of the administrator to protect himself against his claim, or have it provided for under Section 6115, Revised Statutes. She had no notice or knowledge of the filing of the account. Law v. Law, 64 Ohio St., 369; Petersine v. Thomas, 28 Ohio St., 596; Olney v. Watts, 43 Ohio St., 499; Maxwell v. Sawyer, 90 Wis., 352; Wickes v. Wickes, 98 Ill. App., 156; White v. Bates, 89 Tenn., 570; Schmidt v. Mining Co., 40 Pac. Rep., 406; Parker v. Altschul, 60 Cal., 380; Leese v. Clark, 28 Cal., 36; Wilson v. Dougherty, 45 Cal., 35; Reynolds v. Hosmer, 45 Cal., 627; Storey v. Storey, 125 Ill., 608; Adams v. Storey, 135 Ill., 448; Johnson v. Johnson, 57 Kan., 343; Skittletharpe v. Skittletharpe, 40 S. E. Rep., 851; Rice v. Rice, 6 Ind., 100; Almond v. Almond, 4 Rand., 662; Russell v. Russell, 4 Green (Ia.), 26; Phelan v. Phelan, 12 Fla., 449; Maguire v. Maguire, 7 Dana, 181; Fishli v. Fishli, 12 Ky., 338; Kempster v. Evans, 81 Wis., 247; Galusha v. Galusha, 43 Hun, 181; Hopkins v. Hopkins, 40 Wis., 462; Davol v. Davol, 13 Mass., 264; United States v. Walker, 109 U. S., 258; Lewis v. Allred, 57 Ala., 628; Watkins Land Mortgage Co. v. Mullen, 54 Pac. Rep., 921; Seamster v. Blackstock, 83 Va., 232; Neilson, Petitioner, 131 U. S., 176; Cuddy, Petitioner, 131 U. S., 280; Page, Ex parte, 49 Mo., 291; Dill, In re, 32 Kan., 668; Folger v. Insurance Co., 99 Mass., 267; Fithian v. Monks, 43 Mo., 502; Anthony v. Kasey, 83 Va., 338; Cooper v. Reynolds, 77 U. S., 308; Ritchie v. Sayers, 100 Fed. Rep., 520; Murray v. Am. Surety Co., 70 Fed. Rep., 341; Warren v. Bank, 157 N. Y., 259; Commissioners v. Gwin, 136 Ind., 562; Railroad Co. v. Chenault, 60 S. W. Rep., 55; Venner v. Denver Water Co., 63 Pac. Rep., 1061; McCleary v. McLain, 2 Ohio St, 369; Spoors v. Coen, 44 Ohio St., 497; Railroad Co. v. Marshall, 11 Ohio St., 497; Rosebrough v. Ansley, 35 Ohio St., 107; Miller v. Miller, 11 Circ. Dec., 455; 21 C. C. R., 207; Bacon v. Bacon, 43 Wis., 197; Dinet v. Eigenmann, 80 Ill., 274; Campbell v. Campbell, 37 Wis., 206; Lennahan v. O’Keefe, 107 Ill., 620; Stahl v. Stahl, 114 Ill., 375; Craig v. Craig, 163 Ill., 176; State v. Cook, 66 Ohio St., 566; Buchanan v. Bilger, 64 Tex., 589; Crews v. Mooney, 74 Mo., 32; Keith v. Keith, 104 Ill., 397; Uhl v. Irwin, 3 Okla., 388; Taylor v. Gladwin, 40 Mich., 232; Piatt v. Piatt, 9 Ohio, 37; Marvin v. Collins, 48 Ill., 156; Edmondson v. Dist. of Allison, 98 Ia., 639; Darrow v. Darrow, 43 Ia., 411; Delafield v. Brady, 108 N. Y., 524; Julier v. Julier, 62 Ohio St., 90; DeWitt v. DeWitt, 67 Ohio St., 340; Foote v. Worthington, 4 Re., 500; 4 W. L. B., 645; Field v. Field, 15 Abb. New Cas., 434; Burr v. Burr, 10 Paige, 20; Wait v. Wait, 4 N. Y., 95; Knapp v. Knapp, 134 Mass., 353; Zuver v. Zuver, 36 Ia., 190; McCraney v. McCraney, 5 Ia., 232; Martin v. Martin, 65 Ia., 255; O’Hagan v. 
      O'Hagan, 4 Ia., 509; Barrett v. Failing, 111 U. S., 523; Conrad v. Everich, 50 Ohio St., 476; Scott v. Shepherd, 2 Wm. Bl., 892.
    
      Mr. Edward M. Ballard and Mr. Walter M. Schoenle, for defendant in error.
    Under the Ohio statutes, the court had no right to decree alimony in installments to an erring wife, and a decree undertaking to do so can be collaterally attacked.
    In the first place, the whole matter of alimony is purely statutory. Therefore, in entering this decree, the court has only such powers as are given it by the statute, and can exercise none other. Olin v. Hungerford, 10 Ohio, 268. This principle is inferentially recognized in another Ohio case. Conrad v. Everich, 50 Ohio St., 476; Barker v. Dayton, 28 Wis., 367; Kempster v. Evans, 15 L. R. A., 391.
    Courts in this country possess in actions for divorce only the power conferred by statute. Bacon v. Bacon, 43 Wis., 197; Perkins v. Perkins, 16 Mich., 162. The power is a statutory power incident to the jurisdiction over applications for divorce. The statute describes the entire powers and regulations on the subject. Peltier v. Peltier, Harr. Ch., 19. See also, Henderson v. Henderson, 64 Me., 419; Stratton v. Stratton, 73 Me., 481; Davol v. Davol, 13 Mass., 264; Powell v. Campbell, 2 L. R. A., 617.
    It is especially true that the allowance of anything from the husband’s property to an erring wife is statutory because at common law, an erring wife received nothing at all. 2 Bishop on Marriage and Divorce (6 ed.), 377; 2 Am. & Eng. Enc. Law (2 ed.), 118; Stewart on Marriage and Divorce, Sec. 371; Nelson on Marriage and Separation, Sec. 907; Martin v. Martin, 33 W. Va., 695.
    As the plaintiff in error, who was an erring wife, had no rights at common law, her entire rights must be determined from the statutes. The statute upon this subject, which was in force at the time this decree was granted, was originally passed as one section and is found at 51 O. L., p. 377, Sec. 7. It was carried into the revision of the statutes of 1880 under the sectional number of 5699 and 5700.
    It will be noticed from an examination of this statute, that where the husband is the aggressor, the wife may be allowed “alimony,” and it may be in installments, but where the wife is the aggressor, she shall be adjudged a “share” of her husband’s property. This law was passed as one section. It becomes evident, therefore, that the legislature intended to make a distinction between the cases where the wife was the aggressor and the husband was the aggressor.
    The common pleas court in entering this decree in 1881, may have thought that the legislature ought, in such a case, to have allowed alimony in installments,or it may even have thought that the legislature intended to allow alimony in installments in such a case, but failed to do so by mistake, but this will not authorize the court to read that provision into the statute. It is a well recognized principle of law that the law is as it is written, and the court, under the guise of interpretation, has no right to inject into the law things which are not there. 23 Am. & Eng. Enc. Law (1 ed.), 303; Woodbury v. Berry, 18 Ohio St., 456; 23 Am. & Eng. Enc. Law (1 ed.), 298, with many cases cited; Smith on Stat. Const., 714; Maxwell on Interpretation of Statutes, p. 2, Sec. 2; Sedgwick on Stat. and Const. Law, 231; Cooley on Const. Lim. (5 ed.), 197; Ludlow v. Johnson, 3 Ohio, 553; McCormick v. Alexander, 2 Ohio, 66; Bruner v. Briggs, 39 Ohio St., 478.
    We would call the court’s attention also to the decision recently handed down by the Supreme Court upon the Royer Law regulating the jurisdiction in error of the Supreme Court.
    Was this order then authorized by the statute? We think not, for an order to pay to the wife one hundred dollars a month during her life is not adjudging to the wife a “share of the husband’s real or personal property.”
    There have been no decisions in this state interpreting this statute, but there have been decisions in other states upon statutes that are exactly like ours in effect. Johnson v. Johnson, 57 Kas., 343; Kempster v. Evans, etc., 15 L. R. A., 391; Skittletharpe v. Skittletharpe, 10 S. E. Rep., 851; Galusha v. Galusha, 43 Hun (N. Y.), 181; Hopkins v. Hopkins, 10 Wis., 462.
    The distinction between a division of the property and alimony in installments is recognized in Stewart on Marriage and Divorce, Sec. 396; 2 Nelson on Div., 871; Bacon v. Bacon, 43 Wis., 197, 202; Maxwell v. Sawyer, 90 Wis., 352; and has been distinctly recognized by our own Supreme Court in Olney v. Watts, 43 Ohio St., 499.
    Under an early Indiana statute, allowing a court to give alimony in money, held, there was no authority to set off specific property. Rice v. Rice, 6 Ind., 100. The right to give “alimony” does not give the right to give specific property or to give a gross sum of money. 2 Am. & Eng. Enc. Law (2 ed.), 129; Stewart of Marriage and Divorce, Sec. 374; Almond v. Almond, 4 Rand. (Va.), 662; Russell v. Russell, 4 Green (Ia.), 26; Phelan v. Phelan, 12 Fla., 449; Maguire v. Maguire, 7 Dana, 187; Calame v. Calame, 25 N. J. Eq., 548.
    Under a statute authorizing the court to “order the division of the estate, real and personal, in such a way as to them shall seem just and right,” held, a sum of money cannot be decreed, but property must be divided in kind. Fishli v. Fishli, 12 Ky., 338.
    If the court had no power under the statutes to grant alimony in installments to an erring wife, then the attempt to do so was beyond its jurisdiction, for jurisdiction is not only the power to hear and determine, but also the potoer to enter the particular judgment in the particular case. 12 Am. & Eng. Enc. Law (1 ed.), 147-150; 12 Am. & Eng. Enc. Law (1 ed.), 247; 1 Freeman on Judg., Sec. 116; Cooper v. Reynolds, 77 U. S., 308; Ritchie v. Sayers, 100 Fed. Rep., 520; United States v. Walker, 109 U. S., 258; Nielsen, Petitioner, 131 U. S., 176; Cuddy, Petitioner, 131 U. S., 280; Lewis v. Allred, 57 Ala., 628; Folger v. Insurance Co., 99 Mass. 267; Fithian v. Monks, 43 Mo., 502; Seamster v. Blackstock, 83 Va., 232; Anthony v. Kasey, 83 Va., 338; Watkins Land-Mortgage Co. v. Mullen, 54 Pac. Rep., 921 (Kans. Ct. of App., 98); Dill, In re, 32 Kan., 691; Page, Ex parte, 49 Mo., 291.
    There are also some Ohio cases which support this principle: Spoors v. Coen, 44 Ohio St., 497; McCleary v. McLain, 2 Ohio St, 369. The following cases also support the principle: Railway Co. v. Telegraph Co., 112 U. S., 306 (by Ch. Jus. Waite); Warren v. Union Bank, 157 N. Y., 259.
    The principle above enunciated has been applied in the following cases to which we would call the court’s attention in order to show how the courts have interpreted it. White Co. (Comrs.) v. Gwin, 136 Ind., 562 (22 L. R. A., 402) ; Railway Co. v. Chenault, 60 S. W. Rep., 55; Venner v. Water Co., 63 Pac. Rep., 1061 (Colo. App., 1900); Davol v. Davol, 13 Mass., 264. Under the above authorities, the decree in the divorce case of Hassaurek v. Hassaurek was in excess of the jurisdiction of the court granting it, and as this fact appears on the face of the decree, it can be collaterally attacked.
    Moreover, if our contention that it was beyond the power of the court to enter such a decree as this is correct, the fact that Frederick Hassaurek gave his consent to the rendering of.the decree cannot give the court jurisdiction to render it. 1 Black on Judg., Sec. 217; Rosebrough v. Ansley, 35 Ohio St., 107, 111; Railway Co. v. Marshall, 11 Ohio St., 497; Carriage Co. v. Miller, 11 Circ. Dec., 455; 21 C. C. R., 207; Nicholson v. Roberts, 6 Dec., 233; 4 N. P., 43; 12 Ency. Pl. & Pr., 125, par. 7, citing several cases, among them McCleary v. McLain, 2 Ohio St., 368; Johnson v. Parrotte, 46 Neb., 51; Andrews v. Wheaton, 23 Conn., 112 ; McKinnon et al. v. Hall, 50 Pac. Rep., 1052; Robertson v. Wheeler, 162 Ill., 566; Leman v. Sherman, 117 Ill., 657; Inglehart v. Arminger, 1 Bland., 519.
    1. Even in a case where alimony is properly allowed in installments, the right to it ceases by operation of law at the death of the husband, even though the decree provides that it shall continue during the life of the wife. 2 Am. & Eng. Enc. Law (2 ed.), 139.
    This principle is supported by numerous authorities. 2 Bish. on Mar. & Div. (6 ed.), Sec. 248; Stewart on Mar. & Div., Secs. 360, 374 and 392; Lockridge v. Lockridge, 3 Dana, 28; Francis v. Francis, 31 Gratt., 283; Wallingsford v. Wallingsford, 6 H. & J. (Md.), 485; Casteel v. Casteel, 38 Ark., 477; Kurtz v. Kurtz, 38 Ark., 119; Brown v. Brown, 38 Ark., 324; Stahl v. Stahl, 114 Ill., 375; Gaines v. Gaines, 48 Ky., 295; Knapp v. Knapp, 134 Mass., 353; Dewees v. Dewees, 55 Miss., 315; McGechie v. McGechie, 43 Neb., 523; Maxwell v. Sawyer, 90 Wis., 352; Martin v. Martin, 33 W. Va., 695; Odom v. Odom, 36 Ga., 286; Rodgers v. Viness, 6 Ired., 293; Lennahan v. O’Keefe et al., 107 Ill., 620, cited with approval in Craig v. Craig, 163 Ill., 176; Storey v. Storey, 125 Ill., 608.
    Even where the decree in so many words makes the alimony payable during the life of the wife it will be held to cease by operation of law at the death of the husband. Johns v. Johns, 44 N. Y. App. Div., 533.
    2. The decree in the case at bar was not founded on an agreement between the parties.
    Opposing counsel contend, first, that independent of any contract between Frederick and Eliza Hassaurek, the plaintiff in error was entitled to collect the installments falling due after the death of Frederick Hassaurek. The foregoing authorities show that this claim is not well founded. In the second place, opposing counsel contend that the decree was founded upon a contract between the parties and that for this reason the installments may be collected after the death of the husband. We deny that there was any such contract.
    We start with the presumption that a decree is founded on evidence and not on agreement. This is a presumption of ordinary experience for they are ordinarily so founded, and it has been recognized by an Ohio court. Sargent v. Sargent, 11 Dec., 218; 7 N. P., 639.
    3. Even when a decree for alimony in installments is founded on a contract, that contract must specifically bind the heirs of the husband to justify the payment of installments after the death of the husband. Storey v. Storey, 125 Ill., 608.
    4. Not only must the contract specifically bind the heirs, but the divorced wife must have, by la\V and independent of the contract, the right to dower in the husband’s estate or the installments must cease at the death of the husband. Adams v. Storey, 135 Ill., 448.
    5. There are good reasons for holding that the installments must cease at the husband’s death. Lockwood v. Krum, 34 Ohio St., 1; Field v. Field, 66 How. Pr., 346; Lennahan v. O’Keefe, 107 Ill., 620.
    The decree in the case at bar is a mere personal order, and can be enforced only by contempt proceedings. It does not create a debt and is not a- judgment, and therefore a suit cannot be maintained for the arrears due under it. We base this statement upon the following considerations:
    First — There is no provision in our statutes authorizing a suit to be brought upon such a decree.
    Second — There was no provision at common law for bringing suit upon a decree for alimony in installments. The only way to enforce such a decree at common law was in earlier times by excommunication and afterwards by imprisonment. See 2 Bishop on Mar. & Div. (6 ed.), Sec. 497; Stewart on Mar. & Div., Sec. 362.
    The reason for thus holding becomes plain when we examine the common law actions. These were real, personal, and mixed, o Stephens on. Pleading, p. 39. The real and mixed actions were writ of right, formed on, dower and quare impedit. Ib., 43. The personal actions were debt, covenant, detinue, trespass, trespass on the case and replevin. Ib., 46. It requires but a glance at the above list to see that this decree does not come within any of the above actions unless it comes within trespass on the case or debt. The writ of trespass on the case lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass do not apply. Stephens on Plead., 48. It becomes evident from this definition that the action brought by Eliza Hassaurek is not an action of trespass on the case. She does not ask for damages of any sort, but for money due under an order of court.
    This then must be an action in debt, or else it is not an action known to the common law. “The writ of debt lies when a party claims the recovery of a debt.7’ Stephens on Pleading, 46. Unless the claim rising under this decree is a debt or a judgment (which is a debt of record), it cannot be the basis of an action in debt.
    A decree for alimony in installments does not create a debt, for such alimony may be enforced by imprisonment notwithstanding the constitutional inhibtion against imprisonment for debt. Effinger v. State of Ohio, 5 Circ. Dec., 408; 11 C. C. R., 389; Myers v. Myers, 4 Dec., 217; 3 N. P., 162; Kaderabek v. Kaderabek, 2 Circ. Dec., 236; 3 C. C. R., 419; Stewart v. Stewart, 10 Re., 662; 23 W. L. B., 38; Hand v. Hand, 11 Re., 202; 25 W. L. B., 214; Bronk v. State, 31 So. Rep., 248; Cave, In re, 66 Pac. Rep., 425; Pain v. Pain, 80 N. C., 322.
    Alimony is not a debt vhich may be proved in bankruptcy, and which is barred by a discharge therein. In re Anderson, 97 Fed. Rep., 321; Turner v. Turner, 108 Fed. Rep., 785; Welty v. Welty, 195 Ill., 335; Barclay v. Barclay, 184 Ill., 375; Audubon 
      v. Schufeldt, 181 U. S., 575; Campbell v. Campbell, 37 Wis., 206; Bacon v. Bacon, 43 Wis., 198; Clark v. Burke, 65 Wis., 359; Ex parte Perkins, 18 Cal., 60; Chase v. Ingalls, 97 Mass., 524.
    Moreover, the order upon which this suit is based was not a judgment (upon which an action for debt can be brought). That an order to pay alimony in installments is not a judgment is specifically held in Hart v. Hart, 1 Dec., 94; 1 N. P., 56; Myers v. Myers, 4 Dec., 217; 3 N. P., 162. It is inferentially held in Olin v. Hungerford, 10 Ohio, 368, where it is held that alimony in installments is not a lien upon real estate, and in Everick v. Conrad, 2 Circ. Dec., 517; 4 C. C. R., 234, where the court holds that alimony in installments and alimony in gross differ from each other. Stewart on Mar. & Divorce, Sec. 374; Miller v. Miller, 75 N. C., 70.
    Such a decree as this can be enforced by contempt proceedings. The very fact that this extraordinary remedy is allowed is evidence that it cannot be enforced in the ordinary way. In Haines v. Haines, 35 Mich., 138; Livingston v. Superior Court, 117 Cal., 633; 38 L. R. A., 175; Hart v. Hart, 1 Dec., 94; 1 N. P., 56; Galusha v. Galusha, 43 Hun (N. Y.), 181; Kurtz v. Kurtz, 38 Ark., 119; Allen v. Allen, 100 Mass., 373.
    The conclusion to be drawn from the foregoing authorities is that an action at law for money due cannot be maintained on such a decree as the one on which this action is founded. This conclusion is strengthened by the following decisions upon analagous questions.
    While a décree for alimony is not a decree in chancery, as was decided in Olin v. Hungerford, 10 Ohio, 268, it resembles to a chancery decree for the payment of money. Van Buskirk v. Mulock, 18 N. J. Law,. 184; 2 Bishop on Mar. & Div., Sec. 499.
    It has been held that a suit cannot be maintained on an action for alimony pendente lite because it is subject to revision or modification at any time. Vine v. Vine, 42 Atl. Rep., 871 (21 R. I., 190) ; Nary v. Braley, Admr., 41 Vt., 181; 2 Am. & Eng. Enc. Law (2 ed.), 117; Kempster v. Evans, 15 L. R. A., 391; Jordan v. Westerman, 62 Mich., 170; Daniels v. Lindley, 44 Ia., 567.
    One reason why an action should not be allowed upon such a decree is that it is too indefinite and unsettled. This is true first, because it is always liable to be modified by the court. Olney v. Watts, 43 Ohio St., 499; King v. King, 38 Ohio St., 370; Hare v. Gibson, 32 Ohio St., 33; Kempster v. Evans, 15 L. R. A., 391; and this may be done even as to installments which are overdue. Craig v. Craig, 163 Ill., 176.
    The common pleas court should not have allowed Mrs. Hassaurek a standing in court merely because that court thought she ought to have some way of collecting alimony. When the common law gives no right of action, the court cannot supply a remedy. 6 Am. & Eng. Enc. Law (2 ed.), 270.
    Alimony decreed in installments to the wife for life ceases at the death of the husband, when the divorce is granted to the husband for the aggression of the wife.
    
      Construing the statute in the light of the law of alimony, the court exceeded its jurisdiction.
    
    The law of alimony is based on the duty of the husband to support the wife. This duty arises on marriage, and when the marriage relation is terminated by the death of the husband, this duty naturally and of itself ceases. When the divorce is granted for the aggression of the husband, this same duty is enforced by the court, and is known in the law as alimony. The decree for alimony takes the usual form of installments of money payable at regular intervals by the husband, as presented in the alimony decree at bar.
    The support that a wife receives after a husband’s death is created by statute, and is an interest in the husband’s property, known as her dower in his real and personal estate. Therefore during a husband’s life a wife has her right of support; after his death her other rights in his property accrue — in our state fixed expressly by the statutes. Lockwood v. Krum, 34 Ohio St., 1; Conger et al. v. Barker’s Admr. and Heirs, 11 Ohio St., 1; 2 Am. & Eng. Enc. Law (2 ed.), 139; Stillman v. Stillman, 99 Ill., 196; Martin v. Martin, 65 Ia., 255; Secs. 3108, 3111, Rev. Stat.
    In England the courts had no power to grant divorces a vinculo, and therefore alimony could only be granted for divorces a mensa et Choro; but in this country the prevailing practice obtains that the courts have jurisdiction to grant absolute divorces, hence have granted alimony and applied its principles. Pomeroy’s Eq. Jur. (2 ed.), Sec. 1120; Campbell v. Campbell, 37 Wis., 206.
    The statute in force at the time is found in 51 O. L., 377, Sec. 7 (sections 5699 and 5700, inclusive of the statutes of 1880).
    This precise question has been decided by the Supreme Court of Kansas in Johnson v. Johnson, 57 Kan., 343, involving a statute similar to ours and a decree for alimony like the present.
    So the court in this case had the power to grant a certain portion of the husband’s real or personal property at the time of the divorce; could have granted a sum in gross as alimony, which might also be made payable in installments, but would still be a part of that gross sum. This is exemplified in the statute itself, for if a divorce be granted for the husband’s aggression the wife is entitled to a “sum of money, payable either in gross or in installments.” It follows that the section cannot be extended from its apparent intention in favor of the erring wife.
    Therefore we claim, as our first ground, that the court had no jurisdiction to grant the decree as entered.
    The distinction between a division of property and an alimony decree in installments is now well settled by the authorities. Bacon v. Bacon, 43 Wis., 197; Maxwell v. Sawyer, 90 Wis., 352; White v. Bates, 89 Tenn., 570; Olney v. Watts, 43 Ohio St., 499.
    Moreover the duration of the payments is indefinite, for it may be terminated at any time by the remarriage of the plaintiff in error, and for that reason can not be considered a final division of the husband’s property. This is shown in the case of Kempster v. Evans, 81 Wis., 247 (15 L. R. A., 391).
    Another reason that this judgment is not a division of the husband’s property at the time of divorce, is that a decree of this nature for the aggression of the wife is subject to modification. Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452.
    The wife for whose aggression a divorce is secured is not entitled to any alimony unless expressly allowed to her by statute. 2 Am. & Eng. Enc. Law (2 ed.), 818; Spitler v. Spitler, 108 Ill., 120.
    The decisions of the Supreme Court of Illinois are instructive on this question. That court has the power to grant a share of the husband’s property (Dinet v. Eigenmann, 80 Ill., 274), but if the alimony is decreed in installments, it is not a division of the husband’s property, and a court has no jurisdiction, though the divorce be granted for the husband’s aggression, to decree the installments beyond the husband’s life,, unless the alimony be in lieu of dower. Lennahan v. O’Keefe, 107 Ill., 620; Stahl v. Stahl, 114 Ill., 375; Adams v. Storey, 135 Ill., 448 (11 L. R. A., 790) ; Starr & Curtis, Ann. Ill. Statutes, Ch. 41, Sec. 14.
    These principles of alimony and alimony in lieu of dower are well stated as a deduction from the authorities, in 7 Enc. of PI. & Pr., 124.
    The same is held in the decisions from the state of New York. In Field v. Field, 15 Abb., N. Cas., 434, suit was brought for unpaid installments of alimony that had accrued since the husband’s death. The decree for divorce had been granted to the wife for the husband’s aggression and alimony ordered to continue in express terms during the life of the wife. The case is affirmed in Johns v. Johns, 44 App. Div., 533, in which the court holds that if alimony be also given in lieu of dower which is secured to her by the New York statutes, the court would then have jurisdiction to continue the installment beyond the husband’s life. So in Wait v. Wait, 4 N. Y., 95.
    Also in Massachusetts the court may grant a gross sum as alimony, as in Livermore v. Boutelle, 77 Mass., 217; but if the alimony is granted in installments, though for the husband’s aggression, it ceases at his death. Knapp v. Knapp, 134 Mass., 353.
    In Iowa alimony may be granted to a wife divorced for her aggression, as held in Zuver v. Zuver, 36 Ia., 190; but in McCraney v. McCraney, 5 Ia., 232, a bill of equity having been filed to set aside a decree for divorce for the purpose of having a wife divorced for her aggression, decreed her dower in the husband’s real and personal estate.
    When the divorce is granted for the aggression of 'the husband, this court has held that alimony may be granted in lieu of dower. Julier v. Julier, 62 Ohio St., 90.
    It is an axiom of statutory and constitutional law that what is expressly prohibited cannot be done indirectly. Dower could not be granted to plaintiff in error, and therefore nothing in lieu thereof. Doyle v. Doyle, 50 Ohio St., 341.
    Also it is to be noted, that the statute provides that she shall be “barred of all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquiresj” but the effect of this decree of alimony is to charge not only the real estate at the time of the divorce, but also that which is acquired thereafter.
    
      This jurisdiction is denied by the statutes of Ohio.
    Upon a divorce from the bonds of matrimony, no rights in each other’s property exist at the death of either party, unless expressly granted by the legislature. American Legion of Honor v. Smith, 45 N. J. Eq., 466; Barrett v. Failing, 111 U. S., 532.
    A number of authorities hold that if the divorce is granted for the husband’s aggression, the divorced wife may, besides her alimony, be awarded a sum in lieu of dower in his real and personal estate, as if the husband were dead, on the theory that the husband should not take advantage of his own wrong. Musselman v. Musselman, 44 Ind., 106; Gercke v. Gercke, 100 Mo., 237; Percival v. Percival, 56 Mich., 297; Reed v. Reed, 86 Mich., 600; Dow v. Bleak, 148 Ill., 76. But in the present case plaintiff in error is not entitled to anything on the husband’s death, and therefore nothing in lieu thereof can be granted her.
    What if Fred. Hassaurek had remarried and had been once more divorced, but this time for his own aggression? Would the wife divorced for her own aggression be permitted to oppose the dower rights of the innocent divorced wife? ' How does this decree affect the heirs at law of Fred. Hassaurek? Lennahan v. O’Keefe, 107 Ill., 620.
    By virtue of sections 4158 and 4159 all. real estate and personal estate “shall descend and pass to the children of the intestate;”- and their inheritance is subject only to the dower rights of a widow. Not only would the rights of innocent heirs be defeated, but even the support for the minor children would be in danger.
    A judgment can not be varied by parol testimony, and for this reason parol evidence can not be introduced to prove that this decree was entered with the consent or agreement of Frederick Hassaurek. Maxwell v. Sawyer, 90 Wis., 352; 2 Nelson on Divorce, 881.
    It is held in this state that an express recital of consent or of an agreement is necessary. 5 Enc. of Pl. & Pr., 963; Law v. Law, 64 Ohio St., 364; Petersine v. Thomas, 28 Ohio St., 596.
    The court exceeded its jurisdiction in this decree for alimony on the grounds as set forth in the first section of our brief. The principle also , applies that, though a court may have jurisdiction of the person and subject matter, it can not in its decree exceed the jurisdiction conferred. This doctrine is recognized by the Supreme Court of the United States in the case of Windsor v. McVeigh, 93 U. S., 274; Cooper v. Reynolds, 77 U. S. (10 Wall), 308. We claim that this question has been decided by this court in Rosebrough v. Ansley, 35 Ohio St., 107. Then Spoors v. Coen, 44 Ohio St., 497, holds that where no claim is stated, and the court renders judgment, that it is such a judgment as may be collaterally attacked. McCleary v. McLain, 2 Ohio St., 369.
   Shauck, J.

There was, upon the evidence, no question of fact for the consideration of the jury. The general question is whether, upon the conceded facts, the judgment should be for the plaintiff, as was held in the court of common pleas, or for the defendant, as was held in the circuit court. The decree of divorce upon which the plaintiff’s action is founded is easily recognized as the termination of marital relations between a pair with whom respect had survived devotedness. Its terms show that the natural relations between the mother and her children were to continue so far as was compatible with a severance of the relations between the parents; that although the evidence established the allegations of the wife’s willful absence the husband desired to secure to her during her life such support as was consistent with his means; that it was by his request that his desire found expression in the terms of the decree, and that the obligation which it imposed was to continue during her life without regard to the duration of his own, if the wife should not by remarriage acquire other means of support. The binding character of this obligation was recognized throughout eighteen years by all the members of the family of the parties. It is now disputed by strangers. Certainly an arrangement so consonant with natural justice should be enforced unless it is forbidden by some inflexible rule of the law so beneficent in its general operation that it should be maintained notwithstanding hardships which may result from its application to particular cases. Such a rule was thought to be applied to the case in the circuit court when it reversed the judgment of the court of common pleas because that court “had no jurisdiction to render the judgment sued on in so far as it required the payment of annual installments as alimony beyond the natural life of Frederick Hassaurek without fixing a definite sum from which the installments were .to be paid.” To support this conclusion much is urged and many cases are cited in the elaborate briefs of counsel for the defendant. That inquiry may be effective, attention should be given to the precise nature of the case. There is no direct attack upon the decree of 1881 by a proceeding to reverse it as erroneous. It is attacked collaterally as void. There is no occasion for considering what presumption should be indulged when the decree in a case of this character is silent with respect to the time during which payments are to be made, ¿unce it is here provided expressly that they should continue during the life of the wife, she remaining unmarried. Nor need we consider the nature of the obligations upon which decrees for alimony are founded since the finding of the court upon the evidence that the wife had been willfully absent for more than three years, and its judgment that the marriage relation should be terminated for that -reason, excluded her right to alimony. The court having concluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Section 5700 of the Revised Statutes, as follows: “And the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.” In view of the wide discretion vested in the court in making that adjudication it cannot be said that its power to adjudge is limited to the allegations of the pleadings as in Rosebrough v. Ansley, 35 Ohio St., 107. The court having this duty to perform and having the parties and their counsel before it, with their consent and at the request of the husband adjudged to the wife during life the equivalent of less than one-third of the dividends of the stock owned by the husband. Whether this judgment would have been an erroneous exercise of the jurisdiction which the statute vested in the court if it had been rendered without consent we need not consider. It must now be regarded as settled beyond controversy that when, in an action for divorce, the court is satisfied from the evidence that the marriage relations should be annulled the parties are competent to contract with respect to such changes in property rights as are to result from the severance of the former relation and their contract, if approved by the court, may be carried into its decree, thus becoming a perpetual obligation. Petersine v. Thomas, 28 Ohio St., 596; Julier v. Julier, 62 Ohio St., 90; Law v. Law, 64 Ohio St., 369. Whether the request of the husband that the decree should be in the terms employed was prompted by a desire to advance his own interests by retaining personal control of the stock which would otherwise have been adjudged to the wife, of by the conviction that in this mode her future support would be more secure, cannot be material to the validity of the obligation. The judgment of the circuit court cannot stand upon the ground npon which, it was placed. The plaintiff’s demand having been made upon the executor upon his appointment as special administrator and having been complied with because of his knowledge of its existence and justice, there is no basis for the contention that there should have been a further presentation of the claim. Nor could the administrator with knowledge of the existence of this demand against the estate defeat it by a distribution of the estate in his hands. Indeed, the conduct, of the parties for eight years thereafter shows that what is spoken of as the distribution of 1891 was regarded by the parties as •subject to the demand of the plaintiff to be discharged by the administrator.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.  