WELCH, J.
The trial court granted plaintiff a divorce on account of fault of the defendant, and decreed plaintiff alimony in the sum of $300,000. Both parties appealed. They will be referred to herein as they appeared in the trial court.
The plaintiff contends that the trial court erred in refusing to decree her a division of property, contending that there was property jointly acquired which under section 672, O. S. 1931, should have been divided between the parties.
The parties were married 'about the year 1880 and lived together for many years on a portion of land now belonging to defendant. Several children were born of the union, all now past majority. Plaintiff abandoned the defendant in 1914, moved away from
the homestead, and' has ever since lived separate and apart from him.
This abandonment, however, according to the evidence and the judgment of the trial court, was justified on account of the fault of the defendant. The property here involved consists of land' recently highly valuable by discovery of oil, together with moneys already received by defendant for oil, or moneys held for him as payment for oil runs. Most of the land involved came to defendant by allotment as an intermarried citizen of the Chickasaw Nation. Eighty acres of the land was purchased by defendant some time after the plaintiff had moved away from the home, the plaintiff joining with defendant in executing a mortgage on this 80 acres as security for a portion of the purchase price thereof.
Plaintiff contends that because she was of Indian blood the defendant’s allotment was jointly acquired within the meaning of the statute, and that the 80acre tract was jointly acquired by reason of the circumstances of the purchase thereof. We are of the view, however, that the defendant’s allotment came to him by reason of his being treated as a member of the Chickasaw Tribe of Indians, and was the direct result of his citizenship in the tribe. While the marriage may have been the means through which defendant attained to citizenship, the plaintiff had no part in the defendant’s acquisition of the allotment within the meaning of the statute. An Indian allotment is not acquired by industry or effort of the allottee, but by reason of his acceptance and registration and enrollment as a member of the tribe. Albert v. Albert, 120 Okla. 172, 251 P. 476. And as to the purchase of the 80 acres by the defendant after plaintiff had moved away, there is no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties. The plaintiff likewise had an allotment of land, and after she moved away from
the
defendant in 1914 she handled her affairs and her property separately, and the defendant handled his affairs and his property separately. The parties never lived together after defendant acquired this 80 acres. It was merely necessary, by reason of the marital status, that both husband and wife sign the mortgage securing the balance of the purchase price of the 80 acres (perhaps it was demanded so by the mortgagee), and the mere fact that plaintiff joined in the execution of the mortgage would not make the purchase a joint acquisition. We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute.
The plaintiff in an effort to obtain a division of the land has raised the question of the homestead character of the land or some portion thereof. We find no controlling force in this contention. In a divorce proceeding the homestead may be treated as any other property, and might be set aside to the wife or left with the husband. If the title is in the husband and no disposition is made thereof, it remains the property of the husband (Goldsborough v. Hewitt, 23 Okla. 66, 99 P. 907), and if the court deals fairly with the wife by an alimony decree of money or property, taking into consideration the value of the homestead and other property, then the wife has no just grounds for complaint based merely on the contention that the homestead was not divided between the parties or decreed to her.
Under the circumstances here, the plaintiff had no fixed right to a division of the property or any part thereof. There was no jointly acquired property. There was ample competent evidence justifying the conclusion of the trial court-that the plaintiff was entitled to a divorce by reason of the fault or aggression of the husband, and she was entitled to 'alimony either in specific property or in money in a reasonable amount.
The trial court found that plaintiff should have alimony in the sum of $300,006; $6,000 had already been paid and the trial court required that $94,000 additional be paid forthwith and $100,000 be paid on July 1, 1937, and the remaining $100,000 be paid July 1, 1938. The court was provided with ample statutory authority to render such a decree; the question remaining of its reasonableness under the circumstances.
The plaintiff contends th'at a larger award should have been made, while the defendant contends that the amount awarded is unreasonable and excessive. The aggregate value of the defendant’s estate ’at the time of the trial was slightly in excess of $1,000,-000, while at that time the value of any property owned by the plaintiff was practically nothing. It satisfactorily 'appears from the record that the separation of the parties was the result of defendant’s improper treatment of plaintiff, extending over a long period of time, and that the plaintiff was without any serious fault, and the trial court" so found. Numerous facts and circumstances are to be considered by this court in passing upon the reasonableness of an alimony award. Those considerations have been mentioned in numerous prior de
cisions, including our opinions in Dresser v. Dresser, 104 Okla. 94, 22 P. (2d) 1012, and Tobin v. Tobin, 89 Okla. 12, 213 P. 884.
It is not necessary that all such considerations be here restated. We do state, however, that it is proper, among other things, to include a fair consideration of the divorced wife’s loss of the right of inheritance. 19 C. J. 257; see Wheeler v. Wheeler, 167 Okla. 598, 32 P. (2d) 305; Dresser v. Dresser, supra, and Wiggin v. Buzzell, 58 N. H. 329.
In states where the wife has the right of dower, the court in passing upon the reasonableness of an alimony award takes into consideration the loss of such dower rights by divorce. Wesley v. Wesley (Ky.) 204 S. W. 165; Demauriac v. Demauriac (Mich.) 220 N. W. 786.
In our state, rights of dower are abolished, but the wife has 'a contingent right of inheritance, and rights even against alienation by will, in which she is fully protected by statute. And where the divorce is necessary by reason of the fault of the husband, it is but natural justice that in fixing an award of alimony all of these rights of the wife as applied to the property presently owned should be taken into consideration.
We do not mean to say that that amount of alimony is to be expressly governed by the apparent value of her right to inherit from her husband. In some cases a fair award of alimony might be of more value than the wife’s inheritance if the husband then died, while in other cases a fair award might be much less than such an inheritance value.
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WELCH, J.
The trial court granted plaintiff a divorce on account of fault of the defendant, and decreed plaintiff alimony in the sum of $300,000. Both parties appealed. They will be referred to herein as they appeared in the trial court.
The plaintiff contends that the trial court erred in refusing to decree her a division of property, contending that there was property jointly acquired which under section 672, O. S. 1931, should have been divided between the parties.
The parties were married 'about the year 1880 and lived together for many years on a portion of land now belonging to defendant. Several children were born of the union, all now past majority. Plaintiff abandoned the defendant in 1914, moved away from
the homestead, and' has ever since lived separate and apart from him.
This abandonment, however, according to the evidence and the judgment of the trial court, was justified on account of the fault of the defendant. The property here involved consists of land' recently highly valuable by discovery of oil, together with moneys already received by defendant for oil, or moneys held for him as payment for oil runs. Most of the land involved came to defendant by allotment as an intermarried citizen of the Chickasaw Nation. Eighty acres of the land was purchased by defendant some time after the plaintiff had moved away from the home, the plaintiff joining with defendant in executing a mortgage on this 80 acres as security for a portion of the purchase price thereof.
Plaintiff contends that because she was of Indian blood the defendant’s allotment was jointly acquired within the meaning of the statute, and that the 80acre tract was jointly acquired by reason of the circumstances of the purchase thereof. We are of the view, however, that the defendant’s allotment came to him by reason of his being treated as a member of the Chickasaw Tribe of Indians, and was the direct result of his citizenship in the tribe. While the marriage may have been the means through which defendant attained to citizenship, the plaintiff had no part in the defendant’s acquisition of the allotment within the meaning of the statute. An Indian allotment is not acquired by industry or effort of the allottee, but by reason of his acceptance and registration and enrollment as a member of the tribe. Albert v. Albert, 120 Okla. 172, 251 P. 476. And as to the purchase of the 80 acres by the defendant after plaintiff had moved away, there is no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties. The plaintiff likewise had an allotment of land, and after she moved away from
the
defendant in 1914 she handled her affairs and her property separately, and the defendant handled his affairs and his property separately. The parties never lived together after defendant acquired this 80 acres. It was merely necessary, by reason of the marital status, that both husband and wife sign the mortgage securing the balance of the purchase price of the 80 acres (perhaps it was demanded so by the mortgagee), and the mere fact that plaintiff joined in the execution of the mortgage would not make the purchase a joint acquisition. We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute.
The plaintiff in an effort to obtain a division of the land has raised the question of the homestead character of the land or some portion thereof. We find no controlling force in this contention. In a divorce proceeding the homestead may be treated as any other property, and might be set aside to the wife or left with the husband. If the title is in the husband and no disposition is made thereof, it remains the property of the husband (Goldsborough v. Hewitt, 23 Okla. 66, 99 P. 907), and if the court deals fairly with the wife by an alimony decree of money or property, taking into consideration the value of the homestead and other property, then the wife has no just grounds for complaint based merely on the contention that the homestead was not divided between the parties or decreed to her.
Under the circumstances here, the plaintiff had no fixed right to a division of the property or any part thereof. There was no jointly acquired property. There was ample competent evidence justifying the conclusion of the trial court-that the plaintiff was entitled to a divorce by reason of the fault or aggression of the husband, and she was entitled to 'alimony either in specific property or in money in a reasonable amount.
The trial court found that plaintiff should have alimony in the sum of $300,006; $6,000 had already been paid and the trial court required that $94,000 additional be paid forthwith and $100,000 be paid on July 1, 1937, and the remaining $100,000 be paid July 1, 1938. The court was provided with ample statutory authority to render such a decree; the question remaining of its reasonableness under the circumstances.
The plaintiff contends th'at a larger award should have been made, while the defendant contends that the amount awarded is unreasonable and excessive. The aggregate value of the defendant’s estate ’at the time of the trial was slightly in excess of $1,000,-000, while at that time the value of any property owned by the plaintiff was practically nothing. It satisfactorily 'appears from the record that the separation of the parties was the result of defendant’s improper treatment of plaintiff, extending over a long period of time, and that the plaintiff was without any serious fault, and the trial court" so found. Numerous facts and circumstances are to be considered by this court in passing upon the reasonableness of an alimony award. Those considerations have been mentioned in numerous prior de
cisions, including our opinions in Dresser v. Dresser, 104 Okla. 94, 22 P. (2d) 1012, and Tobin v. Tobin, 89 Okla. 12, 213 P. 884.
It is not necessary that all such considerations be here restated. We do state, however, that it is proper, among other things, to include a fair consideration of the divorced wife’s loss of the right of inheritance. 19 C. J. 257; see Wheeler v. Wheeler, 167 Okla. 598, 32 P. (2d) 305; Dresser v. Dresser, supra, and Wiggin v. Buzzell, 58 N. H. 329.
In states where the wife has the right of dower, the court in passing upon the reasonableness of an alimony award takes into consideration the loss of such dower rights by divorce. Wesley v. Wesley (Ky.) 204 S. W. 165; Demauriac v. Demauriac (Mich.) 220 N. W. 786.
In our state, rights of dower are abolished, but the wife has 'a contingent right of inheritance, and rights even against alienation by will, in which she is fully protected by statute. And where the divorce is necessary by reason of the fault of the husband, it is but natural justice that in fixing an award of alimony all of these rights of the wife as applied to the property presently owned should be taken into consideration.
We do not mean to say that that amount of alimony is to be expressly governed by the apparent value of her right to inherit from her husband. In some cases a fair award of alimony might be of more value than the wife’s inheritance if the husband then died, while in other cases a fair award might be much less than such an inheritance value. We merely mean that the loss of the inheritance right should be considered along with ihe character of the property, the status of the parties, the duration of the marriage and the other things often pointed out in our former decisions. And it would bP erroneous to limit the alimony award merely to the bare necessary maintenance requirements of the wife, where, as here, there is full justification for a much larger award than merely enough to maintain the wife during her life expectancy.
Both of the parties here are well advanced in age, and if we consider merely the amount necessary for adequate maintenance and support, then the amount awarded plaintiff would be far more than reasonably necessary, while the estate left- with the defendant would be likewise much more than generous necessity or reasonable luxury would require.
There is no question of the defendant’s ability to pay the a-limony as awarded without jeopardizing the remaining portion of his estate. His property is of great value, as heretofore stated, and his assets are quite liquid. He will have abundant cash available to make these payments as decreed, if indeed, he does not already have more than the entire alimony award in available cash. In view of the status of the parties, and the character and value of the estate, and all other considerations which are fully presented in the briefs of the parties, we are impressed with the conclusion that the alimony awarded was in all respects reasonable and fair. We cannot agree with plaintiff’s contention that the amount should be increased, nor with the defendant’s contention that there is any substantial reason why it should be decreased. We cannot but conclude that the ■ trial court in fixing the amount properly’ took into consideration all matters which were presented and entitled to consideration by or in favor, of either of the parties. There are circumstances presented in reference to the character of the land which sufficiently indicate that it was the proper and better plan to decree alimony in money rather than in specific property. The discretion of the trial court should control and his conclusion should not be disturbed unless there was some abuse of discretion or some conclusion against the clear weight of the evidence. There is nothing in the record to persuade us to such a conclusion against the action of the trial court.
Plaintiff objects to the decree in that the manner in which the award is made subjects both parties to a greater tax burden than would have resulted had the property been divided. An award in money rather than in property was proper in this case. The fact that a greater tax results therefrom does not justify a division of the property. The parties themselves may so arrange their affairs in order to legally reduce the' tax burden (Gregory v. Helvering, 293 U. S. 465), but this matter is of no concern on this appeal.
The defendant has pleaded in bar to the present action a judgment rendered by the district court of Pontotoc county in 1932, in an action by the present plaintiff against defendant for separate maintenance. There the court rendered a decree wherein plaintiff was awarded- a portion of defendant’s personal property in full satisfaction of any and all claims the plaintiff then had or thereafter may have against defendant for support, maintenance, or alimony.
Defendant says the plaintiff is estopped by this judgment for the reasons, first, the judgment is res adjudicata of all claims
against defendant; second, plaintiff has acquiesced in the judgment by accepting the fruits thereof.
It is asserted by defendant that in an action of the nature of that from which the former judgment arose, the court, under authority of Privett v. Privett, 93 Okla. 171, 220 P. 348, may “make such order as may be proper for the equitable division of the property then owned by them, taking into consideration the time and manner of its acquisition, and when such order is made, it is final as between the parties.”
In that case the question of divorce was involved, and the court was speaking of the effect of a decree rendered under authority of section 669, O. S. 1931, wherein the court may divide the property although the prayer for divorce may be denied.
The former action between the parties in this ease was commenced under authority of section 678, O. S. 1931, and was for separate maintenance alone. No divorce was sought by either party, nor any division of the property. The court did, however, proceed to divide the property of defendant with the plaintiff, and purported to m'ake the judgment final and binding as to all present and future claims of the plaintiff. The judgment was fully satisfied and plaintiff accepted' all the benefits thereof. Defendant says the plaintiff is now estopped from claiming alimony, or further interest in defendant’s property.
That former judgment, however, is not supported by the issues as formed by the pleadings. The plaintiff did not seek a transfer of defendant’s property. We can look upon the judgment as one awarding alimony in the form of personal property transferred from defendant to plaintiff in lieu of cash. In Anderson v. Anderson, 140 Okla. 168, 282 P. 335, we said that “under our law there is no provision for transfer of the property of the husband in an action' for alimony without divorce. For that reason the judgment in so far as it- may be construed to be a division of property is coram non judice and void.” We therefore find that plaintiff is not here estopped by reason of such former judgment.
Finally, the plaintiff contends that the trial court erred in attempting to create a trust of the alimony 'awarded so that the income therefrom would be paid to plaintiff and the trust estate to descend to her heirs upon her death. We find no authority for such disposition of the alimony award by the trial court. The plaintiff is entitled to this alimony, and, as we have found, the sum awarded is reasonable. We must hold, however, that the trial court erred in attempting to create a special trust of the alimony awarded. It was so held in Simpson v. Simpson (Cal.) 22 P. 167, and that holding was approved by this court in Roberts v. Roberts, 175 Okla. 602, 53 P. (2d) 671.
The judgment of the trial court is in ‘all things affirmed, with this modification, that the portion of the judgment decreeing a trust of the alimony awarded is vacated.
OSBORN, O. X, BAYLESS, Y. C. X, CORN, X, and ORR, Special Justice, concur.
RILEY, PHELPS, GIBSON, and HURST, JJ., dissent.