Cox v. Cox. defendant, are not necessary to jurisdiction. It is sufficient here that the petitioning party has been a bona fide resident of the state for the statutory period, and that the suit is instituted in the proper county. 1 S. & C. Stat. 513; Cooper v. Cooper, 7 Ohio, 594; Mansfield v. McIntire, 10 id. 27. The same rule prevails in many of the other states. Harding v. Alden, 9 Greenl. 140; Ditson v. Ditson, 4 R. I. 87; Tolen v. Tolen, 2 Blackf. 407; Thompson v. The State, 28 Ala. 13; Gleason v. Gleason, 4 Wis. 64; 2 Bish. on M. and D., chap. XI. The ground upon which the validity of these decrees is maintained is, that marriage, being a relation involving the social status of a party to it, the state of which the complaining party is a bona fide resident has the right to determine his matrimonial status; and, in view of the new relations that may be formed in consequence of the dissolution of the marriage in the state where the decree is pronounced, that public policy requires the recognition of the validity of such decrees in other states. But the principle upon which the validity of such decrees rests does not require that they should be allowed to operate in the foreign jurisdiction beyond the dissolution of the marriage. Harding v. Alden, supra; 2 Kent's Com. s. p. 110, note a. In speaking to this point Mr. Bishop, in his valuable work above referred to, says: "The granting of a divorce by the one state, under these circumstances, does not interfere with the rights of the other state, or its apparently divorced subject. Probably the decree is not directly binding upon the person of such subject unless he appears and answers to the suit, or, at least, has notice of it served upon the person within the jurisdiction of the court rendering it. He is not necessarily bound by any collateral clause in it, as that he pay alimony; and he only ceases to be a husband because he has ceased to have a wife." 1 Bish. on M. & D. § 156 (731), § 170 (739). In the present case the marriage was solemnized in this state, where both the parties had their domicil, until the desertion of the husband. The wife's domicil remained unaffected by his desertion. She had no knowledge of the proceedings for divorce until after the filing of her present petition, and, if her allegations are true, the grounds upon which the husband obtained the divorce were false. At the time of the offense this state was, and still is, the place of her domicil, and, on the facts alleged in her petition, she would be Cox v. Cox. entitled, under our laws, to either divorce or alimony, or both, at her election. The question, therefore, is, whether the ex parte decree can be made available, not merely to effect a dissolution of the marriage, but to defeat the right of the petitioner to the alimony which the statute, upon the facts as they exist in regard to the husband's desertion, intended to provide for her. We think the decree ought not to have such effect. In arriving at this conclusion we make no distinction between a decree rendered, under the circumstances of this case, in a foreign and one rendered in a domestic forum. In either case, to give to a decree thus obtained the effect claimed for it, would be to allow it to work a fraud upon the pecuniary rights of the wife. Such a result, in our opinion, is rendered necessary by no principle of comity or public policy—the only grounds upon which ex parte decrees of divorce are authorized and supported. It is not essential to the allowance of alimony that the marriage relation should subsist up to the time it is allowed. On appeal, alimony may be decreed by the district court, notwithstanding the subsisting divorce pronounced by the court of common pleas. It is true the statute speaks of the allowance as being made to the wife. But the term "wife" may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony. In Mansfield v. McIntire, supra, a divorced wife was regarded as the widow of her former husband after his decease, and as such widow entitled to dower. In Richardson v. Wilson, 8 Yerg. 57, the legislature, at the instance of the husband, had, by special act, granted a divorce dissolving the marriage. The act contained the following provision: "That nothing in this act contained shall deprive the said Mary Ann of her right to alimony, if by law she is entitled to the same." Upon bill filed by the wife after the divorce, it was held, under the statute of Tennessee, which, as regards the point now under cousideration, is substantially like our own, that she was entitled to such portion of her former husband's estate as the court, from the nature of the case, deemed proper. VOL. II.-53 Cox v. Cox. A similar principle was recognized in Crane v. Meginnis, 1 Gill & J. 464. In Shotwell v. Shotwell, 1 Sm. & M. Ch. 51, it was held that, where, upon the bill of the wife against the husband, a decree a vincu' matrimonii has been granted, the mere omission in that decree to provide for the alimony of the wife cannot affect the wife's right to such provision, at a subsequent time, by a separate and distinct proceeding. In that case, the circuit court having decreed a divorce a vinculo at the instance of the wife, the superior court of chancery took jurisdiction of a bill by the divorced wife against the husband for alimony. It is said by the chancellor in that case, that "a decree for alimony results from the decree for a divorce, but is not identical with it, or a necessary part of it." In the subsequent progress of the case on appeal, the prayer of the wife for alimony was denied, on the ground that, as no good reason existed for her not having asked for alimony at the time sho obtained her divorce, she ought not to be allowed to assert the right in a separate forum at a subsequent period. In the decision of the case in the court of appeals, it is said by the court: "We do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce, could be maintained for alimony, but only that the present bill shows no sufficient reason for not taking, or at least asking, such a decree from the circuit court, touching the matter now in litigation. A good reason must be alleged why the alimony was not at the proper time allowed. What will be a good reason must depend upon the facts of the case when presented.” In regard to the bearing of the opinion quoted, upon the case before us, it is sufficient to say, that no stronger reasons can ari-e for recognizing the right to alimony after divorce, than where, as is alleged in this case, the divorce was obtained upon false grounds, with no opportunity to the wife to assert the right. For the ruling of the district court as to the effect, on appeal, of the findings of the court below, the judgment is reversed, and the Cause remanded for a new trial. Bradford v. Bradford. BRADFORD V. Bradford. (19 Ohio St. 546.) Will-Condition not to contest. A condition in a will excluding from a share in the estate any heir of testator who "goes to law to break his will" is valid, both as to real and personal property. Upon a breach of such a condition the legacy forfeited will pass to the general residuary legatee. MOTION for leave to file petition in error to reverse a judgment entered below. C. L. Vallandıgham, for the motion. Young & Gottschall, opposed. SCOTT, J. Samuel D. Bradford, as surviving executor of the last will and testament of John Bradford, deceased, filed his petition in the court below to obtain a construction of the will of his testator. By that will, a legacy of six hundred dollars was bequeathed to William Bradford, the present plaintiff, and it also contained a provision as follows: "Now, if any of my heirs is dissatisfied and goes to law to break this will, then my will is, and I direct, that they shall have no part of my estate, and I debar them from any part of my estate whatever." The petition in the court below alleged, and the court found, that William Bradford, after the probate of the will, had instituted proceedings to contest and set aside the same, which resulted in a judgment sustaining the validity of the will. The court thereupon held, among other things, that the clause of the will above quoted was and is a good and valid provision, and that in virtue thereof the said William Bradford, having brought suit, as aforesaid, to set aside the will, had thereby forfeited all right to any share of the estate, and to the legacy of six hundred dollars; and a decree was entered accordingly. The plaintiff here claims, among other things, that this portion of the decree was erroneous; that the clause of forfeiture, in the event of an attempt to set aside the will, must be regarded as in terrorem only, and therefore void in law. In the case of a condition Bradford v. Bradford. subsequent such as this, and where the subject of disposition is personal estate, the doctrine of the English courts is, that the condition is to be regarded as in terrorem only, and that a legacy will not be forfeited by a contest of the will instituted by the legatee, unless by the terms of the will the legacy be given over to another, or be specially directed to fall into the residue, upon breach of the condition. But this doctrine has never been applied to devises of real estate. The distinction seems to have arisen from the fact that in England the ecclesiastical courts early adopted the rule of the civil law upon legatory questions, and this regarded such condition as in terrorem only. Courts of equity seem to have followed the rule of the ecclesiastical courts in respect to legacies, and that of the common law as to land. 1 Jar. on Wills, 850; 2 Will. on Exec. 1094 (star paging); 2 Eq. L. C. 340, et seq. That such a condition is valid, in a will of real estate, seems to be settled in England. Cooke v. Turner, 15 M. and W. 727. It would be difficult to assign a satisfactory reason, grounded upon principle, for holding otherwise in regard to personalty. In regard to both, it is the duty of the courts to carry out the intention of the testator, unless that intention be contrary to the policy of the law. No considerations of public policy require that an heir should contest the doubtful questions of fact or of law upon which the validity of a devise or a bequest may depend. The determination of such questions ordinarily affects only the interests of the parties to the controversy. As was said by the court in the case of Cooke v. Turner, supra: "There is no duty on the part of an heir, whether of perfect or imperfect obligation, to contest his ancestor's sanity. It matters not to the state whether the land is enjoyed by the heir or devisee." We find no American decisions bearing directly upon the question; but we see no reason to doubt the soundness of the ground assumed by Judge Redfield in his work on the law of wills, where he says, (page 679): "The rule of the English law, as to conditions against disputing the will, annexed to some bequests, seems to be in a most absurd state of confusion. It is held, such a condition is void as to personalty, unless the legacy be given over, in the event of failure to perform the condition; but that such a condition is entirely valid as to real estate, whether there be any gift over or not. And it is agreed that there is no substantial ground for any distiLCtion in this respect between real and personal estate. Hence we assume that in this country, any such condition, which is reason |