The contention made for the defendant in error, Dorothy Cox, that Catherine Morrison abandoned any rights which she might have otherwise been entitled to, and that she should be estopped by her conduct from asserting any interest in the property of Gilbert Cox as his wife, should be upheld.

This raises a question on which the defendant in error points out no adjudicated case directly in point, nor have I been able to find any. The statute under which the petitioner, Catherine Morrison, claims in this action, is §§ 8417, 8418, Rev. Laws (Okla.) 1910, which provides: "8417. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the county court, and to the possession of any administrator appointed by that court for the purpose of administration.

"8418. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner:

"First. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child."

Section 3883, Rev. Laws 1910, defines "marriage" as a personal relation, arising out of a civil contract. At common law, an "heir" was a person who took from an ancestor or relative, by reason of consanguinity. Section 3349, Rev. Laws (Okla.) 1910, provides: "Husband and wife contract towards each other obligations of mutual respect, fidelity and support."

And § 3354, Rev. Laws (Okla.) 1910, provides: "A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property."

Section 3359, Rev. Laws (Okla.) 1910, provides: "A husband abandoned by his wife is not liable for her support until she offers to re

turn, unless she was justified by his misconduct in abandoning him."

And § 4642, Rev. Laws (Okla.) 1910, puts in force the common law as modified by the Constitution and statutes in aid of the general statutes of the state.

Although the above-quoted statute on succession purports to place the husband or wife, in his or her right to succeed to the property of the other, on the same footing as an heir at common law, yet, from the statutes and the nature of the relation, it must be conceded her right under the statute finds its inception in contract, and that the provisions of the statutes touching the relation of husband and wife and obligation of each to the other are written into each and every provision thereof. The law, in dealing with the property of the husband and the right of the wife to take the same, uses the word "wife" in its meaning of one in fact, and not merely technically so, by reason of a marriage contract having been entered into. Richard v. Lazard, 108 La. 540, 32 So. 559.

In the case of Prater v. Prater, 87 Tenn. 78, 10 Am. St. Rep. 623, 9 S. W. 361, in discussing the right of the widow to take the property of the deceased husband, the court said: "But if she wilfully and without excuse deserted the family and eloped and lived with an adulterer, or otherwise so demeaned herself that she may neither in morals nor in law require the husband to receive her back again, she is, in such case, not a member of his family while he lives, and does not become his 'widow' in contemplation of the homestead laws when he dies. By all rules of public policy and good morals, the complainant in this case had forever excluded herself from the society, family circle, and home of her husband in his lifetime, and by the same rules she is excluded from the enjoyment of his homestead after his death."

In the case of Daniels v. Taylor, 76 C. C. A. 141, 145 Fed. 169, 7 Ann. Cas. 352, the circuit court of appeals for the eighth circuit discussed at

considerable length the question of the right of a widow to receive dower in the property of her husband, under and by virtue of the provisions of the statutes of Arkansas, extended over the Indian Territory, and in said cause concluded that at common law, where the wife deserted the husband and lived in adultery with another, she was precluded from claiming dower in the property of her husband. The court in said case concluded as to those sections of the statute undertaking to give the widow a right in the husband's property, as follows: "These sections quite plainly contemplate the case of a widow who in the lifetime of her husband lived with him as a member of his family, and performed the duties of that relation, and not one who willingly separated from him, performed none of the duties of a wife, and by her gross misconduct disqualified herself from succeeding him as the head of the family."

In the case of Chrisman v. Linderman, 202 Mo. 605, 10 L.R.A. (N.S.) 1209, 119 Am. St. Rep. 822, 100 S. W. 1090, the Missouri supreme court said: "Nevertheless, dower may be lost. For instance, it being 'a reward of chastity,' it was lost at common law by the wife's adultery. Thus speaketh the oracle of the common law in that behalf: 'A woman leaving her husband of her own accord, and committing adultery, loses her dower, unless her husband takes her back of his own accord.""

In the case of Richeson v. Simmons, 47 Mo. 20, in discussing the right of the husband in the property of the wife, whom he had deserted, the court said: "It may be reasonably inferred that there is not any very amicable feeling of relationship existing between them. Under such circumstances, does the law demand or require the absurdity of Mrs. Barclay, when she wishes to dispose of her private property, going to Mr. Hill and asking him to join in the conveyance, when at the same time he professes to be the

husband of another woman? The length of time that has elapsed, the manner in which each party has regarded and treated the other, ought to operate as an effectual estoppel, and preclude either party from an attempt to intermeddle in the affairs of the other. . . . I think that as Mr. Hill has voluntarily renounced his marital rights, and, by a course of policy persisted in for more than twenty years, has led Mrs. Barclay and the whole world to believe that all control or interest on his part had ceased and been surrendered, he can no longer be a party, nor need he be consulted in any disposition she may see proper to make of her property. Any other conclusion would be promotive of injustice and lead to the greatest hardship."

In the case of Duke v. Reed, 64 Tex. 713, that court said: "The abandonment by Mrs. Dorn having been wilful, or, in other words, without cause, and continuing till the death of her husband, she forfeited all claim to the homestead which he owned at the time of his death, and which she refused to share with him."

In the case of Odiorne's Appeal, 54 Pa. 175, 93 Am. Dec. 683, the wife of the decedent voluntarily abandoned him, and refused, over his repeated importunities to return to him, assigning, as she did, by letters, her lack of affection for him, and her refusal to ever consent to live with him again. Upon his death, she returned, claiming the interest in his property which the law of the state gave the widow. The supreme court of that state in the syllabus said: "Where a wife leaves her husband and renounces all conjugal intercourse a considerable time before his death, she becomes not such a widow, after his death, as was in the contemplation of the legislature when the acts of assembly were passed which entitle her to administer his estate and to appropriate $300 of it to her own use. It has been held that desertion for more than twelve years forfeits her rights under these statutes. 2 Am.

L. Reg. 510. Nor is a wife within their meaning who has lived in a foreign country and never formed part of her husband's family here (Spier's Appeal, 26 Pa. 233), nor a wife who, by articles of separation, has relinquished all her rights in her husband's estate (Dillinger's Appeal, 35 Pa. 357)."

And in the body of the opinion: "Now this lady, who could defy her husband's sorrowful entreaties to return to the duties of a wife, ought not to be so prompt to seek the rights of a wife, after driving him into a premature grave. It is to the faithful wife who lives with her husband, and sustains and comforts him as he descends into the dark valley, that the law gives rights which it withholds from her who forgets and repudiates both vows and duties."

There are many cases reported in the authorities, where the doctrine of estoppel closely analogous to equitable estoppel has been invoked in cases where wives have abandoned their husbands and formed adulterous relations with other men, thereby renouncing their marriage ties, to preclude their taking the property which, under the statute, they would have otherwise been entitled to take. Arthur v. Israel, 15 Colo. 147, 10 L.R.A. 693, 22 Am. St. Rep. 381, 25 Pac. 81.

In the case at bar, Catherine, never unmindful of the fact that she had been married to Gilbert Cox in due form of the law, nor unmindful of the fact that she had not been divorced from him, and, so far as the record discloses, without the knowledge on the part of Kelsie Morrison, voluntarily entered into a marriage in the city of Tulsa with Kelsie Morrison, with whom she lived as his wife up to the time of the death of Gilbert Cox, and who at the time of the trial of this cause testified that Kelsie Morrison was her husband. She accepted the benefits, whatever they were; of this second marriage contract, and by unmistakable evidence she renounced the elements of the contract of marriage with Gil

bert Cox, written therein by the statute, to wit, "obligations of mutual respect, fidelity, and support.' She voluntarily abandoned Gilbert Cox, and without excuse.

The cases above quoted in reference to the rights of the wife in the property of the husband, under the statutes, and the rule of the common law, denying the wife dower, where she without justification deserted her husband and lived in adultery, are not cited herein for the purpose of advocating judicially writing into the statute of Oklahoma on succession a provision not therein incorporated, but they are referred to for the purpose of showing that, in the evolution of the law as to the rights of a wife in the property of her deceased husband, the courts have always held that there was a fealty due from her to him, in order that her inchoate right to assert a claim to his property at the time of his death might ripen into an estate therein.

The technical existence of the marriage relation has alone never given the wife or widow an absolute right in the properties of the husband, which certain misconduct on her part would not preclude her asserting, and does not now give her this right, unless the statutes of modern states, which purport to put her on a par with the heirs by blood, accomplishes this result. There are many judicial decisions from the appellate courts of the Union which vest title in the wife, irrespective of her conduct, by reason of statutes similar to the one under which the petitioner herein claims, the courts. saying and assigning in effect that they cannot write into the statutes on succession conditions which the legislature has not seen fit to incorporate therein, but no case has been cited where the facts are as here found.

Marriage, while a civil contract, is something and considerably more. It is a civil status, existing by authority of law, between persons of opposite sex, in the formation of which, and in the dissolution of

which, if dissolved except by death, the state, in the interest of society, has never abandoned, but has always asserted, its interest. The growth of the law has recognized an increase in the interest of the wife in the property of the husband, not for the purpose of enriching her, but for her comfort, support, and maintenance, as well in his lifetime as after his death, should she survive.

We have above pointed out that, under the express language of the statute of this state, the wife who deserts the husband without justification is not entitled to support of the husband, until she offers to return. While dower has been abolished by the statute, and this common-law estate is no longer received by the wife on the death of the husband, yet can it be argued in reason that the legislative intent and purpose was that a wife, deserting her husband without excuse, should not receive anything from him during his lifetime, unless she offered to return, but in case of his death, which, under these conditions, it could hardly be presumed that she would greatly regret, she could then succeed under the name of "wife" to half of all of his property, in event there survived only one child?

No case is cited by counsel, and we fail to see any good reason why, when she by contract of marriage with another repudiates in a manner as to which there can be no doubt, as to proof, her obligations to her husband, and fails and refuses, without fault on his part, to extend to him that fellowship to which he is entitled, until death has rendered it impossible for her to do so, and then she hastens to assert the invalidity of her second marriage, only for the purpose of taking a half

interest in the property left by him, and which his infant child would otherwise receive, and to use it as a means of comfort in her lascivious conduct with Kelsie Morrison, which had its inception in her bigamous marriage.

We think it shall best serve the interest of public welfare not to undertake to ingraft upon the statute of succession that which is not written therein, but that she should be held to have renounced her vows, and held in contempt the public pol icy of the law touching her marriage contract, on which her rights, if any, in her husband's property, are based, and to have abandoned all claims to the rights arising from such marital contract, and her right under the law to have the same enforced by her unwarranted desertion of her husband, and her entering into the bigamous marriage relation with Kelsie Morrison, and that she should be estopped from asserting the invalidity of her second marriage, and claiming under these conditions to be entitled as the wife of Gilbert Cox to an interest in his estate.

I think the judgment of the trial court, denying her an interest in the property of the deceased, should be affirmed.

Harrison, J., concurs in this. Petition for rehearing denied July 31, 1923.

NOTE.

The various presumptions arising from the fact of marriage are discussed in the annotation appended to the case of BROKESHOULDER V. BROKESHOULDER, post, 464.

V.

Evidence, § 151 second marriage rebuttable presumption.

2. The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is known as a rebuttable presumption, and the one contending against the legality of the second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary.

[See 18 R. C. L. 427, 428; 3 R. C. L. Supp. 812.]

Evidence, § 1501-sufficiency.

3. The evidence of the plaintiff in error in this case, who attacks the validity of the marriage of one of the defendants in error on the ground that the deceased at the time of his second marriage was incompetent to enter into the marriage relation because of his former marriage to the plaintiff in error, examined, and held sufficient to meet the above requirements. bastards

child of

Descent, § 20 formal but void marriage. 4. Under 8420, Rev. Laws 1910, which provides, "The issue of all marriages null in law, or dissolved by divorce, are legitimate," a child born of a marriage contracted and consummated in accordance with the form of Headnotes by ELTING, J.

the law, which for any reason (such as one of the parties having a living spouse undivorced) is invalid, is legitimate and inherits and transmits by descent as though born in lawful wedlock.

[See 3 R. C. L. 723; 1 R. C. L. Supp. 882.]

On Petition for Rehearing. Evidence, § 153 presumption unavailing.

5. The presumption of removal of prior obstacles in support of a marriage does not prevail, where it is attacked and evidence introduced on either side, but the question then becomes one of fact, to be decided in the light of all the circumstances and the reasonable inferences from them. Estoppel, § 101-marriage-denial of existence.

6. The rule as to estoppel arising from the marriage relation is that where a marriage is shown to be illegal, and void ab initio, neither of the parties, by any acts, becomes as against the other estopped to deny its existence, but if one of the parties to such marriage has, by false representations as to the existence of a legal impediment, induced the other to enter into the marriage relation, such party so representing will, where the other has continued to act upon such representation, after the impediment has been removed, be estopped to deny their truth.

[See 10 R. C. L. 763; 18 R. C. L. 450; 3 R. C. L. Supp. 814.]