SEPARATE CONCURRING- OPINION.
GRAVES, J.I concur in the result of this case as reached by my Brother Woonsosr. I do not concur in all that is said in paragraph one of his opinion. That paragraph to my mind properly holds that there was no delivery of the deed, and other things therein decided are unnecessary for the case in hand. No delivery defeats the deed. Whether the party making it was in such state of mind as to be able to make a deed is immaterial, if in fact it was not delivered, and upon the question of mental capacity, I express no opinion. To that portion of this paragraph one, which holds that the deed is testamentary in character, I do not agree. The doctrine therein announced in my judgment trenches upon the holding of this court in O’Day v. Meadows, 194 Mo. 588. The deed being ineffective for want of delivery, this too is un*424necessary for a decision of the case, and might he said to he obiter, hut I prefer to disavow the holding on this particular point, although it might he considered as mere obiter dictum.
Nor do I concur in all that is said in paragraph four of the opinion. This portion of the opinion seems to be opposed to the rule expressed by Sherwood, J., in Gentry v. Gentry, 122 Mo. l. c. 217, whereat it is said: “Nor does it matter that the mansion house was located on land in which Gentry had only a life estate, this fact does not militate against a widow’s right of quarantine in that portion of the land owned by the husband in fee. In Agan v. Shannon, 103 Mo. 661, it was distinctly recognized as an undoubted legal principle that the fact of the accident of the location of the mansion house on an adjacent forty not belonging to the home tract, and to which the decedent had no title, would not in any way affect the quarantine right of the widow in the plantation which her husband owned; and in doing this we followed the ruling made in Brown v. Brown’s Adm’r, 68 Mo. 388, where it was held that notwithstanding the dwelling house of the husband was on an adjacent eighty, and not on the remaining part which he owned in fee, this would not prevent the widow from successfully asserting her right to a homestead in the residue of the farm which her husband owned.”
The italics in the quotation are ours. It would seem in the Gentry case we have held that, although it turns out that the mansion house is on a tract of land to which decedent had no title whatsoever, yet if the lands actually owned by decedent were used in connection with this mansion house, then the widow was not debarred of her quarantine right. The fiction of the law that she shall remain quarantined in the mansion house with full possession of all its messuages, seems to have been eliminated by pure practical law in this Gentry case. In the Gentry case the *425widow could not hold the mansion house after the death of her husband, because upon his death that property, which was held by him as tenant by the curtesy, immediately reverted to Gentry’s children by a former wife and in them was the right of possession. The widow in that case was a second wife, and her right to quarantine could not have been based upon a right to remain (in quarantine) in the mansion house, because the death of the husband terminated such right. This, it occurs to me, was the occasion for the use of the italicized words above quoted. We at least held that Mrs. Gentry was entitled to her quarantine rights in the other lands, notwithstanding the fact that she did and could not hold the mansion house, which had been used in connection therewith. So considering the Gentry case I prefer not to concur in much of the discussion of paragraph four of the opinion. I concur in the result and other portions of the opinion.
Lamm, P. J'., concurs in these views.