delivered the opinion of the court.
Plaintiff, divorced wife of defendant, appeals from an order of the superior court of Cook county terminating instalment payments of money, payable under a divorce decree, after and because of the divorced wife’s remarriage, and from an order dissolving a rule on defendant to show cause why he should not be held in contempt for failure to make certain instalment payments. The matter comes here on the pleadings.'
Plaintiff on June 14, 1946, after a number of preliminary motions, filed her amended complaint for divorce charging extreme and repeated cruelty. On the same day, an answer was filed denying the acts of cruelty, the cause was heard as an uncontested matter, and decree entered. The property settlement agreement of the parties, made part of the decree, in material portions is as follows:
“1. As a lump sum property settlement and alimony in gross, in full of her right, title and interest of every kind, nature, character and description whatsoever, in and to the property, income or estate which the Husband now owns or may hereafter acquire.
“(a) The Husband shall pay to the Wife the sum of Thirty-four Thousand Five Hundred Forty Dollars ($34,540.00), payable in periodic payments during a period ending more than ten years, as follows:
“Twenty-five Hundred Dollars ($2500.00) in cash on the date of the entry of the contemplated decree for divorce hereinafter mentioned; and “Two Hundred Sixty-seven Dollars ($267.00) per month for a period of one hundred twenty (120) months, first payment to be made on August 1, 1946.
“(b) In the event of the death of the Husband prior to the completion of the payments set forth in sub-paragraph (a) above, any unpaid balance thereof, shall be a charge against his estate.
“(c) The Husband shall by his Will provide as follows: to bequeath to the Wife the sum of Ten Thousand Dollars ($10,000.00) to be paid to her upon his death in the event she survives him and has not remarried; in the event the Wife has predeceased him or has remarried, such sum shall be paid to the son of the parties, Carl Clark Walters; and in the event the Wife has remarried and their said son has predeceased the Husband, such legacy shall be cancelled.
< Í
“4. Each of the parties hereto does hereby (to the fullest extent that he or she may lawfully so do without voiding this contract) forever relinquish, release, waive and quitclaim to each other all rights of dower and homestead and all real or personal property rights and claims which he or she now has or may hereafter have, as husband, wife, widower, widow, or otherwise, by reason of the marital relations existing between the parties hereto under any present or future law of any state and of the United States of America or of any other country, against the property of the other party, or his or her estate, whether now owned or hereafter acquired by the other party.”
Provision is made that each party should retain the furniture in his or her possession and that the wife’s attorney’s fees in the sum of $2,000 be paid by the husband.
The decretal portion provides in part:
“2. That the agreement between the plaintiff, Ola Stauffer Walters, and the defendant, Edward H. Walters, dated the 10th day of June, 1946, and herein-above set forth in full, be and the same is made a part of this decree for divorce; and that all of the provisions of said agreement be and the same are expressly ratified, confirmed, approved, and adopted as the orders of this Court to the same extent and with the same force and effect as if said provisions were in this paragraph set forth verbatim as the decree of this Court.
“3. That all the right, title, claim and interest of each party in and to the property of the other party, real, personal or mixed, that he or she now owns or may hereafter acquire, by way of dower, homestead, jointure or otherwise, except the rights granted to each of them by the terms of the agreement of June 10, 1946, hereinabove set forth in full, be and the same are forever barred, terminated, ended, and released.”
On October 27, 1947, plaintiff filed a petition charging the defendant with being in arrears under the terms of the decree in the sum of $801, being payments due on August 1st, September 1st and October 1st, 1947, in the amount of $267 each. Petitioner asked for attorney’s fees for services in connection with preparing and prosecuting the petition. Defendant answered, setting out that on July 2, 1947, plaintiff married one John T. Wheeler, by reason of which fact her right to periodic payments of alimony ceased. Defendant prayed (a) that the court dissolve its rule on defendant to show cause why the defendant should not be held in contempt of court, and (b) that the petitioner’s prayer for a reasonable sum as and for her attorney’s fees be denied.
On November 6th a petition for modification of the divorce decree was filed by defendant, praying cancellation, as of the date of the filing of the petition, of the periodic allowances of alimony which would accrue in the future by the terms of the decree and relieving defendant from the obligation of making further payments to plaintiff. Plaintiff filed a motion to dismiss this petition. Subsequently the court denied plaintiff leave to file certain additional pleadings which we deem unnecessary to consider here. On December 6,1948, the court entered the order appealed from, finding in part material here that the payments provided for in the decree were “periodic alimony” to which plaintiff ceased to be entitled after and by virtue of her remarriage. The decree was ordered modified by relieving the defendant of the requirement to pay alimony instalments due after her remarriage; plaintiff’s petition for a rule to show cause why defendant should not be held in contempt for failure to pay the monthly instalments which became due after plaintiff’s remarriage and plaintiff’s prayer for attorney’s fees were denied.
The primary question raised by this appeal is whether the amount required to be paid “as a lump sum property settlement and alimony in gross ’ ’ became a vested property right of plaintiff upon the entry of the decree. Whether or not it did so become necessitates an examination into the provisions of the decree to determine whether the provision was in fact a lump sum property settlement payable partially in instalments or whether it was merely a provision for the payment of periodic alimony. If it was a lump sum settlement, then it is not modifiable; but if it was periodic alimony, then it is modifiable, and under section 18 of the Divorce Act plaintiff’s right to.-payment of the instalments accruing after remarriage is extinguished.
Section 18, par. 19, ch. 40, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 109.186] in force at the time this decree was entered, provided as follows:
“When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; . . . and provided fu-ih ther that a party shall not be entitled to alimony and maintenance after remarriage. ...”
The provision “that a party shall not be entitled to alimony and maintenance after remarriage” was enacted by amendment in 1933. The statute was further amended on July 27, 1949, to provide that, regardless of the remarriage, any party to whom instalment payments as settlement in lieu of alimony have been ordered paid, shall be entitled to receive any unpaid instalments. However, in view of the conclusions arrived at, this 1949 amendment is not here considered. For that matter, the 1933 amendment to section 18, which provided that a party shall not be entitled to alimony and maintenance after remarriage, brought about no change in the basic law of this State, but was merely declaratory of that law as it had long existed, as will be shown hereinafter.
“Alimony” has been defined as an allowance in a decree of divorce carved out of the estate of the husband for the support of the wife. Adler v. Adler, 373 Ill. 361, 369; Herrick v. Herrick, 319 Ill. 146; Barclay v. Barclay, 184 Ill. 375. These and many other Illinois cases hereafter considered indicate that the term “alimony” bears certain distinguishing characteristics. It is for an indefinite period of time and usually for an indefinite total sum. It is based upon the husband’s income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live. It is modifiable after decree when the wife’s needs increase or decrease, or when the husband’s ability to pay increases or decreases. This is so because it takes the form of periodic allowances which do not vest until they become due. It usually terminates upon the death of the husband, although by agreement payments may be made a charge upon the husband’s estate after they become due. They are never a charge on a husband’s estate in advance of the due date because they are not, prior to that time, vested. Payments of alimony from husband to wife are not based upon any consideration moving from wife to husband, but are based upon the common-law duty of the husband to support his wife. “Alimony” in this sense of the word, is modifiable.
On the other hand, the phrase “alimony in gross” or “gross alimony” is always for a definite amount of money; the payment is always for a definite length of time; it is always a charge upon the husband’s estate and has uniformly been held by our courts to be not modifiable.
In the early case of Plaster v. Plaster, 47 Ill. 290, a divorce was decreed at the November Term,. 1854, and it appearing that the defendant was at that time worth $1,000, one-quarter of this was decreed to the wife “as her absolute property and as alimony.” At the March Term, 1866, the wife filed a petition claiming payment for the support and education of the child of the couple and for further alimony. In holding that the decree as to alimony was not modifiable, the court said at page 294:
“As to the question of further alimony, we are aware of no principle of law which would authorize it. At the time the divorce was granted, plaintiff in error received one-fourth of the value of the entire property of her husband, as her sole and separate property, as her alimony. The division was liberal, and "being in gross, it must be held to be in full of all claims of alimony. . . . where a gross sum is decreed and received for, or in lieu of, alimony, it must be held to be in full discharge and satisfaction for all claim for future support of the wife. . . . having discharged the duty of her support, by paying to his former wife the gross sum decreed in lieu of alimony, she ceased to have any more claim on her former husband for her support, than she has on any other man in the community. ’ ’
In Buck v. Buck, 60 Ill. 241, a consent decree awarded the wife, among other things, $12,000 as gross alimony. The husband appealed and the Supreme Court said:
“It sufficiently appears from the recitals in the decree, that the whole question of alimony was fixed and settled by the agreement of the parties.... Having consented to these provisions of the decree, the plaintiff in error can have no relief against the force of his own voluntary agreement.
“Whether the alimony is too high ... it is not now necessary for us to express an opinion. It was competent for the plaintiff in error to consent to such a decree and having done so, it must remain forever binding on him. ’ ’
In Griswold v. Griswold, 111 Ill. App. 269, the court said at page 278:
“When a gross amount is awarded as alimony, it will be deemed a full discharge of all claims for future support of the wife, . . . but where an annual allowance is decreed, the court has the power to alter or modify such allowance, as the subsequent needs of the wife and ability of the husband may reasonably and properly require.”
In Plotke v. Plotke, 177 Ill. App. 344, the court said at pages 347, 348:
“ . . . where the decree awards a sum in gross for, or in lieu of alimony, such a decree will be regarded as final and the gross sum, when paid, will operate as a discharge and satisfiaction in full for all claim for future support of the wife. ... we think the order for the payment of alimony in gross should only have been entered with the consent of the appellant; for by such an order, she is forever barred from making any further application to the court, even if his earnings from his law practice shall increase ten-fold.”
In Martin v. Martin, 195 Ill. App. 32, the decree provided “that the defendant pay to the complainant the sum of $1,000 as and for her reasonable solicitor’s fees and suit money, together with the costs of this proceeding, and also the sum of $15,000 as alimony for the said complainant. ’ ’ Later there was a petition filed for modification on the ground of a change in the financial condition of the parties. The court said at page 34:
“No complaint is made as to the action of the last-mentioned chancellor in denying the motion to modify that portion of the decree in regard to alimony and solicitor’s fees, and it is plain that the chancellor acted properly in that regard. Where the provision for alimony in the decree takes the form of a weekly, monthly or yearly allowance, the power-is expressly reserved by the statute to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties, but in the present case the decree awarded a sum in gross for alimony, and such a decree is final, and the chancellor before whom the motion to modify was made had no power to change the same, the term at which the decree was entered having gone by. Plotke v. Plotke, 177 Ill. App. 344.”
In Maginnis v. Maginnis, 323 Ill. 113, the court said at page 117:
“Where the decree of divorce awards a sum in gross for or in lieu of alimony the decree will be regarded as final, and the gross sum, when paid, will operate as a discharge and satisfaction of all claim for future support by the wife, . . . but where the provision for alimony in the decree takes the form of a periodic allowance, section 18 of the Divorce Act . . . provides that‘the court may . . . make such alterations in the allowance of alimony and maintenance . . . as shall appear reasonable and proper. ’ ’ ’
Since the 1933 amendment the court has had occasion to refer to the same in several cases, and the rule seems to have been the same since amendment of the statute as before.
In Recklein v. Recklein, 327 Ill. App. 641, the court said at page 644:
“In the instant ease it appears that there were no children born of the marriage, and no weekly, monthly or yearly allowance of alimony, which the court would be empowered to modify at any time according to the varying circumstances and needs of the parties. Where the decree of divorce awards a sum in gross for or in lieu of alimony, as was done herein, the decree will be regarded as final.”
That the award may be payable in instalments is not determinative of the question as to whether it is gross alimony or periodic alimony. Gross alimony may be payable in instalments — whether all cash or all or partly on credit does not affect the essential nature of the transaction. The principle involved is that gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect. It would be a harsh rule that would deprive parties of the right to make final property settlements merely because the one furnishing the money was unable to meet the entire obligation in one payment. It would favor the affluent over the one less fortuitously circumstanced. This reasoning is supported by a long fine of cases. In McKey v. Willett, 248 Ill. App. 602, a bankrupt divorced wife assigned to the trustee in bankruptcy $6,000 due under provisions of a divorce decree awarding her “a gross sum settlement of $15,500, payable in instalments.” There were due on these instalments three unpaid sums of $2,000 each. The Appellate Court, reversing the trial court’s holding. that this was periodic alimony, said at pages 605, 606:
“There is a well-recognized distinction, under decisions in Illinois and elsewhere regarding awards of alimony between those ‘in gross’ and those where periodic payments (monthly, quarterly or yearly) are ordered made to the wife within the joint lives of the parties or until the wife remarries. . . . And it is the law that ‘where a sum in gross is allowed, it maybe made payable in instalments.’ ” (Citing 19 C. J. 261, sec. 608; Winemiller v. Winemiller, 114 Ind. 540; Bassett v. Waters, 103 Kan. 853; Smith v. Rogers, 215 Ala. 581.)
In the case of Kohl v. Kohl, 330 Ill. App. 284, decided by this district in 1947, the decree found “that the parties hereto have entered into an agreement to make a complete, final and effective provision for a settlement of their respective property rights and holdings, and the relinquishment of all rights, interests and claims which each party might otherwise have to the property of the other, and a final and effective settlement of the rights, claims and demands of the plaintiff against the defendant by way of alimony, dower, jointure and otherwise.” In that case the defendant agreed to pay the plaintiff $21,000, $7,500 at or before the entry of the decree and the balance of $13,500 in weekly instalments of $80 each until paid in full. This court found that notwithstanding these payments were to be made in instalments the agreement was a property settlement and not a decree for alimony. Additional holdings to this effect are reported in In re Fiorio, 128 F. 2d 562; Jones v. Jones, 216 Ky. 810; Guess v. Smith, 100 Miss. 457; Beard v. Beard, 57 Neb. 754.
These cases in an unbroken line point out that law as it existed both before and after the 1933 amendment to section 18, and it is significant that in none of these cases, nor in the many others which we have examined, where the use of the phrase “gross alimony” or “alimony in gross” was used, was the decree ever thereafter held to be modifiable until the case of Banck v. Banck, 322 Ill. App. 369 (decided in 1944) and the subsequent case of Hotzfield v. Hotzfield, 336 Ill. App. 238. The latter case adopts the opinión of the Banck case, and accordingly we shall in this opinion consider only the former. The decree in the Banck case, after reciting that the parties had agreed upon a property and alimony settlement and making disposition of certain real and personal property recites “that in addition thereto, said plaintiff shall pay the said defendant the sum of $4,500 as gross alimony as follows, to-wit: $500 upon the rendition of this decree and the balance in monthly instalments of $100 each payable on the first day of each and every month hereafter. . . . ”
Thereafter the lump sum was paid, as were the instalment payments as they became due, to the date of defendant’s remarriage. Plaintiff then petitioned the court to be relieved from further payments under the provisions of the 1933 amendment to section 18 of the divorce statute to the effect “that a party shall not be entitled to alimony and maintenance after remarriage.” The prayer of the petition was allowed, and, in affirming the trial court, the majority opinion held in effect that the decree was one for alimony to be paid on the instalment plan, stating at page 380:
“Where the decree awards a gross fixed sum in full settlement of all alimony claims, the same, when free of fraud, becomes final and its payment precludes the parties, but where the decree takes the form of a periodic allowance of future payments, it is controlled by and deemed to have been made in view of the provisions of section 18 of the statute concerning remarriage of the recipient.” (Citing Maginnis v. Maginnis, 323 Ill. 113; Herrick v. Herrick, 319 Ill. 146; Smith v. Smith, 334 Ill. 370; Adler v. Adler, 373 Ill. 361.)
“An intermingling of the language concerning settlement of property rights and the expression ‘gross alimony’ or provision for a lump sum, when payable in future instalments, does not ordinarily take the provision for the payment of alimony or support money out of the provisions of the statute nor render same inapplicable upon remarriage of the defendant. ’’ (Citing Miller v. Miller, 317 Ill. App. 447; Welty v. Welty,.195 Ill. 335; De La Cour v. De La Cour, 363 Ill. 545.)
This language of the Banch case, to the effect that a decree awarding future instalment payments becoming due subsequent to remarriage is controlled by and deemed to have been made in view of the provisions of section 18, is clearly at variance with the many authorities which we have above cited and is not supported by the particular authorities upon which it claims to rest, as appears from the analysis in the dissenting opinion therein and in the special concurrence here.
• [14] Counsel argues that the Illinois courts have established the rule that lump sum awards of money-payable in instalments are alimony “if so described by the decree.” We do not understand this to be the holding of the Illinois courts, to be the proper test, or to be necessarily true. It is not the label placed by decree upon payments which constitutes them either alimony or lump sum property settlements; it is the elements inherent in the case as a whole, the record of which the decree is a part, which determine to what category such payments belong. ' "o
To argue that, “where the intention of- the court as shown in the decree of divorce is to award monthly sums to plaintiff as and for alimony, said sums :are alimony . . . notwithstanding the fact that the descree provides for a lump sum payment to be made in monthly instalments over a definite period of time, ’ ’ is to beg the question. This case involves a determinatioii of the meaning of the decree as determined from the entire record. The parties hereto made the agreement from which their rights are to be determined, and, even though it became merged in a decree, the court may not disregard their intention. Storey v. Storey, 125 Ill. 608; Dowiat v. People for use of Richardson, 193 Ill. 264.
■ The parties here described the purpose that they had in mind, in the preamble to their agreement, wherein it was recited:
• “Whereas, the parties hereto consider it to their best interests to settle between themselves now and forever the respective rights of property, dower rights, homestead rights, and any and all other rights of property. and otherwise growing out of the marriage relationship existing between them, and which either of them now has or may hereafter claim to have against the other, in and to any property of every kind, nature or description, real, personal or mixed, now owned or which may hereafter be acquired by either of them; and
“Whereas, a full and complete disclosure has been made by each of the parties hereto to the other of all property, real, personal and mixed, owned by either of them, and each of the parties has had the benefit of his and her respective counsel” etc.
This statement of purpose indicates that the parties were entering into an agreement having to do, not with an arrangement for the support of the wife which would take the form of monthly payments, but with rights which each had or might have in the property of each other, and were attempting to work out an arrangement whereunder neither would have any further claim to the property of the other. If the agreement was merely one having to do with periodic allowance, it would not have been necessary or appropriate to have determined the rights which each had in the other’s estate; neither would it have been necessary for mutual disclosures to have been made as to the property owned by either of them. The recital of intention is a strong indicium of the fact that the parties were making a property settlement. Furthermore, in the first paragraph of the agreement itself it is defined “as a lump sum property settlement and alimony in gross in full of her right, title and interest ... in and to the property, income or estate which the Husband now owns or may hereafter acquire.”
Even though the contention of the defendant were sound, that the phrase “alimony in gross” should be given the meaning ‘ ‘ periodic alimony, ’ ’ how is the further language of this paragraph, “asa lump sum property settlement,” to be explained? Defendant suggests that the agreement was a disposition of both property rights and alimony. He urges that the instalment payments were alimony, whereas the $10,000 agreed to be bequeathed by will, the provision with reference to the household furniture, and the $2,000 attorney’s fees were property settlement factors.
We do not agree with this contention. The furniture which was awarded belonged to the wife prior to the settlement. The provision with reference to attorney’s fees would ordinarily be an obligation of the husband, regardless of agreement. The provision with reference to the $10,000 testamentary bequest, even if based upon something more than moral consideration, was purely contingent, first, upon the wife’s not remarrying; second, upon her surviving the testator; and most important of all, upon his being possessed of $10,000 at the time of his death. It conclusively appears that the only valuable consideration passing to the wife was the money award, and this could not have been by way of both property settlement and periodic allowance.
On the divorce hearing where the parties were represented by counsel, the written agreement in question was displayed to plaintiff by her counsel. After it had been established that she was familiar with its provisions appear these questions and answers:
“Q. Do you understand all you are to receive from your husband is contained in this agreement? A. Yes.
Í C
“Q. Mr. Walters must comply with its terms and live up to them and you must? A. Yes.
“Q. Do you understand if you take the proceeds of this agreement and accept its terms you can never come into this Court or any Court and ask for anything additional from Mr. Walters as long as he lives up to this agreement? A. Yes.”
Obviously the parties intended that this was to be the type of agreement which should never be modifiable by either of them at any subsequent time, for its covenants were mutual.
Finally, the agreement disclosed that the unpaid balance of any instalments remaining unpaid on the husband’s death was made a charge against his estate. This, as we have heretofore pointed out, is a characteristic of a gross alimony award as distinguished from a periodic allowance. It further indicates that it was the intention of these parties that the rights of the wife to this sum should vest at the time the agreement was made, and the fact that it was to be partially paid in instalments had to do merely with an incident and not the essence of the contract.
It thus appears that the parties entered into a property settlement for a definite amount of money for a definite length of time, which was to be a charge on the husband’s estate, payable partly in instalments. The language used in the agreement and decree supports the construction that the wife was to receive $34,540 as a lump sum property settlement which was not subject to future modification upon remarriage or for any other cause.
The judgment of the superior court of Cook county modifying the decree in question is reversed and the cause is remanded with directions (1) to vacate the modification of the decree of December 6, 1948, (2) to enter a rule against the defendant instanter to show cause why he should not be held in contempt of court for failure to obey the provisions of the divorce decree, (3) to conduct a hearing as to the reasonable value of the services rendered by plaintiff’s attorneys from August 1,1947, to date, and (4) to enter an order upon the defendant to pay to plaintiff as and for her attorneys’ fees such sum so found to be due.
Reversed and remanded with directions.
Niemeyer, P. J., specially concurs.
Feinberg, J., dissents.