A rehearing is sought in this ease, upon the ground that the statute now in force does not permit the rendition of a decree for a sum of money in gross to a party obtaining a . divorce, but requires that the decree should merely provide for her support arid maintenance. This question is covered by the decree in King v. King, (28 Ala. 315,) and we might content ourselves by referring, to the doctrine of stare decisis. But, as we think the decree in King v. King can be vindicated by fair reasoning, we prefer, not to dispose of the questions raised in a manner so summary.
The section of the Code, under which the decree for a sum of money in gross was rendered in this case, is in the following words: “ If the wife has no separate estate, or if it be insufficient for her maintenance, the chancellor, upon granting a divorce, must decree the wife an allowance out of the husband’s estate; taking into consideration the value thereof, and the condition of his family.” Code, §1971. Alimony, in the ecclesiastical law, was a provision for the maintenance of the wife; but the defi*408nition of alimony affords no analogy to guide us in the construction of this statute. The reasons why it does not are — that, in England, alimony was n'ever allowed,, where there was a divorce a vinculo, (Bishop on M. & D. § 563; Godolphin’s Ec. Law, 508; Bleeker v. Cooper, 7 S. & R. 500;) and our statute has not used the term “ alimony.” The court is to make an allowance out of the defendant’s estaté. The word allowance, it is contended, ex vi termini implies a stated sum, to be paid from time to time, for the maintenance of the complainant, which must terminate with her death. It must be admitted, that the term is often used i'n that sense, and is used in'that sense in section 1970, which speaks of the provision for the wife’s support pending the suit. But then it is susceptible of a much more enlarged signification, and is‘often used to denote a sum or thing granted or permitted by the law ; and indeed, is, frequently used in the Code itself in that sense. — Code, §§2556, 2379, 1825. In that sense,' we think it was used in the section above quoted; and it may as well embrace the decree of a sum in gross, as of sums payable at stated intervals. Even in reference to alimony pendente lite, it is permissible to wait until the final decree, and adjudge to the wife a sum in gross, instead of making allowances from time to time.
The statute of Ohio, upon the same subject, uses precisely the same term that is found in ours; and the supreme court of that State has decided, that under it the court may reader a decree for a gross sum, or for installments, payable at stated intervals. — Pratt v. Pratt, 9 Ohio, 37.
Judge Stone assents to the result attained, mainly on the authority of King v. King, but does not concur in the reasoning.
The petition for a rehearing is overruled,
•Note by Reporter. — The -appellant’s counsel after-wards made another application for a rehearing, on the ground that the record showed that the complainant had a separate estate, while it did not appear that the value *409of this, estate was in any manner shown to the chancellor, or estimated by him in determining the amount of her permanent alimony; and they contended that an allowance out of the husband’s estate, forpqrm.anent.alim.ony, was only authorized where the wife’s separate estate was shown to be insufficient for her maintenance. In opposition to the application,'the appellee’s counsel adduced affidavits, showing that, since the delivery of the foregoing opinions, all the matters in controversy between the parties, relating to their money and other property, had been compromised, and the agreement of compromise fully executed; and they insisted, that this precluded investigation into the legal question presented by the application. In answer to this application, the following opinion was delivered :
A J. WALKER, C. J.It appears that Mrs. Jeter had, at the time of the marriage, some property; which, under our statute, became her separate estate. No reference was made to the register, to ascertain the value of this separate estate; nor does it appear that its value was shown to the chancellor, by any evidence taken in the cause. But this objection to the decree was never made, nor was the attention of the court called to the facts alluded to, until after the opinion of the court had been delivered, a petition for reheai’ing on other grounds overruled, and the parties had, by mutual agreement, made a settlement of all the matters involved in the litigation. On this settlement, the complainant and the defendant made mutual concessions, and the defendant obtained material advantages, to which he was not entitled under the decree of the chancellor. This voluntary settlement, the stipulations of which had been fully performed on both sides, precludes a reconsideration of the cause in this court. But the majority of the court think that, under the circumstauees, the 'decision in this cause should not be construed as settling the rule, that in cases where the wife has a Separate estate, a decree for an allowumee out of the husband’s estate can be sustained on appeal, unless it appears that the value of such separate *410estate was shown to the. chancellor, either by eyidence taken in the cause, or by a report of the register made upon a reference for that purpose. — See Code, § 1971. But 1 think, that where the disparity between the husband’s'* estate and the separate estate of the wife is so great as appears in this case, .the court may'take judicial cognizance that the separate estate is not sufficient'for the maintenance of the wife; especially as the question of allowance is, by the law, very much a matter of judicial discretion.