A rehearing was granted in this ease and the cause has again been exhaustively argued both orally and in briefs of counsel for both parties. All of the questions presented by counsel upon the rehearing were fully considered by this court in the original opinion, except the one question as to whether Mrs. Harpold could enter into a contract, to marry before the expiration of six months after the granting of divorce in her suit against Gainey, although such marriage contract was not to be consummated until after the expiration of six months from the date of such decree.
*695See. 2617, Rev. Codes, makes “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any other person other than such former husband or wife, .... illegal and void from the beginning unless: (1) The former marriage of either party has been annulled or dissolved more than six months.” It is the marriage when entered into within six months from the date of the decree which this statute makes void and not the agreement to marry. The statute does not prohibit a person from entering into an agreement to marry before six months has expired after the date of the decree, if such agreement is to be consummated and the marriage contract actually made after the expiration of the six months. In the case at bar the contract alleged in the complaint was not to be carried out in violation of the laws of the state. It was an agreement to marry to be consummated at a time when the marriage would have been valid, and it is this agreement which the plaintiff alleges the defendant failed to keep and for which damages were-sought. The statute does not prohibit the making of such an agreement or render the same illegal ór void, and the authorities hold that such an agreement is valid. This question was directly before' the supreme court of California in the case of Buelna v. Ryan, 139 Cal. 630, 73 Pac. 466, in which the court said:
“If she [plaintiff] had the right to marry at a certain time, she had the right before that time to agree to marry, provided the agreement was not to be consummated until the time. In other words, the plaintiff had the right to agree to do what the law gave her the right to do. The law gave her the right to marry after the year, and to agree to do so before the expiration thereof.....It is the marriage that is declared illegal and void.”
The former opinion very fully dealt with all other questions presented on the argument at the rehearing, and after a careful- re-examination of such questions the court still adheres to the opinion formerly expressed, except upon the question of estoppel. After a re-examination of this question, the court is unanimously of the opinion that the law *696of estoppel does not apply to the facts of this case, and that the evidence as to the acts, conduct and knowledge of the defendant, appellant here, was not sufficient to estop him from denying the legality of the decrees of divorce offered in evidence.
A reference to the former opinion will show that the majority of the court were of the opinion that the trial court did not err in admitting in evidence the decrees in the case of Mary Harpold v. Adam Harpold and Mary Gainey v. Timothy Gainey, and that Justice Ailshie dissented and was of the opinion that the court did err in admitting in evidence the decree in the case of Mary Gainey v. Timothy Gainey. With the above modification of the former opinion the majority of the court are of the opinion that the judgment should be affirmed. Judgment affirmed with costs in favor of the respondent.
Sullivan, C. J., concurs. Ailshie, J., dissents for the reasons stated in his former dissenting opinion.