
    Mary Ann Bailey v. George Bailey.
    October Term, 1903.
    Present: Rowell, O. J., Tyler, Munson, Start, Watson, and Haselton, JJ.
    Opinion filed February 13, 1904.
    
      Divorce — Alimony—Pension.
    Upon a decree of divorce a vinculo for tire fault of the husband, it is proper for the court, in fixing the amount of alimony the husband shall be required to pay, to consider his pension from the United States as part of his financial resources.
    Petition For Divorce, with prayer for alimony. Bill granted and alimony decreed at the June Term, 1903, Caledonia County, Stafford, J., presiding. The petitionee excepted.
    
      Harla/nd B,. Howe and Marshall Montgomery for the petitionee.
    The court had no jurisdiction toi decree petitionee’s pension to the petitioner because it was not yet owned by him, but was to be acquired subsequently. Bishop', Mar. and Div., Vol. 2, §§ 857-887; Peighley v. Peighley, 61 Am. Dec. 375; Cochrane v. Cochrane, 42 Neb. 612; Van Orsdal v. Van Orsdal, 67 Iowa 35; Plarrison v. Harrison, 56 Am. Dec. 227; Buckminster v. Buckminster, 38 Vt. 248; Am. & Eng. Ene. Daw, Vol. 2, pp. 98, 124.
    
      May & Simonds for petitioner.
    Orders in divorce cases are not founded upon contracts. 'Andrews v. Andrezvs, 62 Vt. 495.
    A decree for alimony is based upon the husband’s income; and his resources and! other helpful facts are taken into account in determining the amount. Stewart, Mar. & Div. § 373; Haywood v. Clark, 50 Vt. 617; Roselle v„ Rhodés, 2 Api. St. Rep. 591.
   Watson, J.

On dissolution of the marriage. for the cause of intolerable severity, the court decreed to the petitioner as permanent alimony the sum of four hundred dollars payable, one hundred dollars on the 20th days of October, 1903, January, April, and July, 1904, respectively, with interest after maturity, if not paid, and made the same a charge upon the petitionee’s interest in certain real estate. The petitioner was also decreed all the articles of personal property and the household furniture then in her possession. It was further decreed that the petitionee should pay to1 the clerk of the court, for the benefit of the petitioner, the sum of thirty-six dollars on the 15th day of October, 15th day of January, 15th day of April, and the 15th day of July annually thereafter, until further order of court, as a continuing alimony. In the making of this last order the court took into consideration the pension of twenty-four dollars per month which the petitionee receives from the United States government for disabilities resulting from his service as a soldier in the Civil War, holding as a matter of law that the court might properly consider that as a part of his financial resources. To' this holding the petitionee excepted. Beyond this no exception was taken, and our consideration of the case is confined accordingly.

The Revised Statutes of the United States, § 4747, provides that “No sum of money d:ue, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure, by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any agent or officer thereof, or is in the course of transmission to the pensioner entitled thereto, but shall inure wholly to1 the benefit of such pensioner.”

It is contended that by force of this section the court has-no power to award pension money not received by the husband at the date of the decree, as alimony to a divorced wife. But this is not the question. The question is, had the court a right, as a matter of law, to consider such a pension as a part of the petitionee’s financial resources?

The exemption under the law covers pension money only during its transmission to the pensioner. When it has been received by him, it has inured wholly to his benefit, within the meaning of this statute. Then, to the game extent as money from other sources, it is subject to attachment, levy, and seizure as opportunity presents itself. McIntosh v. Aubrey, 185 U. S. 122, 46 L. Ed. 834. And so, in effect, was the holding of this court in Martin v. Hurlburt, 60 Vt. 364, 14 Atl. 649.

Nor did the fact that it was neither property in hand nor the income of such property render its consideration improper. A husband’s faculties are 'his capabilities of maintaining a family, ordinarily consisting of his income from whatever source derived, and they, with all the other circumstances surrounding the parties, should be taken into’ consideration when alimony or other annual allowance is decreed to be paid by the husband to the wife. 2 Bish. M. & D. §§ 1005, 1006, 1017. See, also, Hedrick v. Hedrick, 128 Ind. 522; Tully v. Tully, 159 Mass. 91; Eidenmuller v. Eidenmuller, 37 Cal. 364; and Holmes v. Holmes, 29 N. J. Eq. 9.

Judgment affirmed.

TylEr,, J-, dissents.  