Action in equity, brought in the Jackson Circuit Court by the kin and collateral heirs of one Ernest L. Henderson, deceased, to annul, on the ground of mental incapacity, the marriage of deceased to defendant Helen R. Henderson, and for other incidental relief. Plaintiffs being cast below have appealed.
Defendant Tillhoff is sued in his representative capacity as the executor of the last will of the deceased, and because he refused to join in the action as a party plaintiff. The Corn Belt Bank is made defendant because, as it is averred, it has in its custody as bailee for defendant Helen R. Henderson, certain notes and securities delivered- to her by virtue of a former settlement mutually made between the adversary parties herein. Among the incidental matters referred to above may be mentioned a temporary injunction, which was sued out with a view of preserving the status quo, :but which upon the trial of a motion to that end, was dissolved. From this judgment of dissolution, plaintiffs appealed to the Kansas City Court of Appeals, where the judgment below was in all things affirmed. [Henderson v. Henderson, 141 Mo. App. 540.] With the exception apparently of some testimony in rebuttal which cannot be said to disturb materially the balances of credibility on either side, the motion to dissolve the injunction was tried on the identical evidence on which the instant case was tried. In fact the instant case, so far as we can gather from a very unsatisfactory record, seems to have been largely but a trying over again of the case of Henderson v. Henderson, supra. Be this as may be, the facts there are in all material respects the facts here. Those who desire may read them there; we do not deem it necessary to again burden the books with them.
*724Many questions of estoppel were urged in defense by Helen R. Henderson, tbe principal defendant, arising, it is alleged, out of orders for allowances made and judgments of distribution solemnly entered by tbe probate court of Jackson county and not appealed from; but since the main controversy here is waged about tbe question of whether Ernest L. Henderson was sane or insane, mentally capable or an imbecile from tbe ravages of disease, when be married defendant Helen, and since this is tbe only thing decided by tbe court nisi, from which this appeal is.taken, we may treat it as tbe court below treated it. In this phase tbe court below found thus:
“Tbe court being fully advised of and concerning tbe premises finds tbe issues for tbe defendants and further finds that Ernest L. Henderson, at tbe time he and Helen R. Ressor were married, was sane, and that said marriage was a valid marriage.”
And thereupon tbe court nisi simply adjudged upon tbe above finding that plaintiffs take nothing by their action and that defendants go hence. Tbe above is tbe only finding and judgment before us in this case.
Both said Ernest L. Henderson, tbe deceased, and Mrs. Helen R. Ressor, then a widow, were domiciled in Kansas City prior to tbe first day of June, 1906. About this time deceased, who was suffering from bulbar paralysis, went for tbe benefit of bis health to Hot Springs, Arkansas, accompanied by defendant Helen R. Ressor, who went as bis nurse. Mr's. Ressor says, and in this she is corroborated by at least two other witnesses, that she bad become engaged to marry deceased about January, 1905, and that tbe marriage-between them was to have occurred ■ prior to a trip-which deceased made to Europe in June, 1905, but that her illness at that time caused a postponement of the-marriage. When deceased returned from Europe in August, 1905, be was ill and was forced to go to a *725sanitarium at Battle Creek, Michigan. Following an attack of pneumonia, in which defendant Mrs. Ressor nursed him, the engagement was temporarily broken, but again renewed, Mrs. Ressor tells us, prior to the visit to Hot Springs in June, 1906. While at Hot Springs deceased was, as we forecast above, cared for and nursed by Mrs. Ressor till August 10, 1906, when a marriage ceremony was duly and legally — confessedly so far as the outward forms of law are concerned — performed between them. After this marriage two of the brothers of deceased, J. 0. Henderson and Gr. L. Henderson, who are plaintiffs here, visited him and defendant Plelen at Hot Springs, while they resided together outwardly as spouses. Letters written to him afterwards by these brothers expressed surprise at his favorable prognosis and one of them referred to his “marvelous improvement.” Nevertheless, practically all of the witnesses agree in saying that from the time he went to Hot Springs in June till he left there some time in December, 1906, his physical condition was deplorable and repulsive. He and defendant Helen returned to Kansas City about January, 1907, and lived there together, apparently at least as husband and wife, till he died in June, 1907. Helen Henderson says there was sexual consummation of the marriage some ten days after its celebration, but her letters shortly after the marriage ceremony say that in deceased’s then physical condition sexual consummation was impossible, and that even if possible, his physical condition regarded, it would have been dangerous.
Toward the sole issue here, viz: the mental capacity of.deceased to validly make and enter into a marriage, said by our Missouri statute to be “a civil contract” (Section 8279, R. S. 1909), practically the whole substance of the several witnesses ’ pertinent testimony was directed. The whole substance of this testimony is fairly set out in the case of Henderson v. *726Henderson, 141 Mo. App. 540, to which reference for further facts is hereby made.
OPINION.
Abstract
I. Three points deserve our attention. One of these which has to do with the sufficiency of the abstract *s ra*sed by the respondents.- Specifically,, this point is that the abstract filed is insufficient in that it fails to show by any entries contained in the record proper that the motion for a new trial was either filed or overruled, or that the bill of exception» was ever filed. In the abstract originally filed here these defects enured. But afterwards and prior to the day on which the case was set down for argument in-Division Two, but after joinder in. error, appellants asked, by formal motion, leave to file a supplemental abstract (which abstract was lodged here with the motion) in which the defects complained of were cured. This motion was accompanied by an affidavit of the-printer to the effect that certain pages of the abstract .were by accident omitted when the printed abstract was being assembled for binding. The facts presented being in a sense novel, inasmuch as amendments of abstracts after joinder in error are forbidden by our rules, we took this motion with the case.
The affidavit of the printer is corroborated apparently by the patent physical fact that there are three blank pages where the omitted entries ought to be and from further fact that in the paging of the abstract before us there occurs at the same place with' the blank pages an hiatus of eleven pages. In short, the page preceding the first blank page is numbered 63 and the page following the last blank page is numbered 75. From these facts it will be seen that appellants are not in default except in so far as lack of diligence may be argued from their failure to note the defect of omission in the abstract till this defect was *727called to their attention by respondents’ motion to dismiss the appeal. This they explain by the suggestion that the record is very voluminous, containing as it does 990 closely printed pages, and that the time to serve it under our rules had about elapsed when it came from the printer, and so in the hurry the fact of the omission of certain pages was overlooked.
The complaint is based upon the strict letter of our rule number 4, and is highly technical; the omission had been corrected before our hearing of the ease and the argument thereof; respondents are in no wise hurt, and so we do not think we should put the appellants out of court upon a technicality so bald and merit-less as that presented by respondents’ motion to dismiss. We will overrule the request for a dismissal of. the appeal and permit appellants to formally file their supplemental abstract heretofore lodged in the cause with our clerk.
Collateral1 Attack.
II. Many contentions pro and con are made touching whether appellants, whom we may for clarity call plaintiffs, may maintain this action at, all 1111 c^er the peculiar facts of this case. There-is no very strenuous contention made by defendants that an action may not be brought at all after the death of one spouse to annul the marriage contract on account of lack of mental capacity of the deceased spouse to enter into a marriage contract. The point of the contention made is, that if we grant that such an action can ordinarily be brought (and that it will lie defendants practically concede), it cannot be brought in this ease on account of the provisions of a statute of the State of Arkansas, the place of contract, which statute was offered upon the trial and which it is urged serves to make this marriage voidable only, and that being voidable and not absolutely void, an action cannot be maintained by the heirs of the' deceased spouse. In other words, the contention is that a mar*728riage contract which, is voidable only and not void cannot be attacked collaterally after the death of one of the parties to it. This statnte reads as follows:
“Sec. 5175. "When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.” [Kirby’s 1904 Dig. of Ark. statutes of 1904.]
We cannot find that his statute has ever been construed by the Arkansas courts. Similar statutes in all material respects have been very seriously criticised by Mr. Bishop in his excellent work on Marriage, Divorce and Separation. That there is palpably much lack of art in the drawing of this statute must be conceded, and that it states a truism and a thing a layman wonld know, goes without saying; but that its meaning is fairly apparent and that, its intention is to a marked degree salutary likewise goes without saying-. To our minds it means that the courts and not the individuals affected must in all cases be allowed to sit in judgment upon the question of the existence of nonage, or mental incapacity, or impotence, or fraud, or duress to an extent which will furnish sufficient cause for annulment. Its effect is to render the marriage of persons under the age of consent, or the marriage of the mentally incapable, as also marriages contracted, by fraud or force, voidable only. And being so voidable and not void, legally vulnerable to attacks made in the lifetime of the spouses only. This' proposition is concisely stated in 2 Nelson on Divorce and Separation,- section 569, where it is said:
“A voidable marriage can only be inquired into by a direct proceeding between the parties and during fhe lives of both of them. Until it is set aside it is *729practically valid for all purposes; but when set aside the decree renders it void from the beginning. Marriages are voidable which are obtained with imperfect consent, as where there is fraud, error or duress, or the party is incapable of giving consent from want of age, or mental incapacity, or where one of the parties was impotent before marriage. At the common law the canonical disabilities, consanguinity, affinity and impotence, rendered the marriage voidable and not void. This is, however, modified by statutes declaring certain marriages void for consanguinity and affinity. Voidable marriages are, of course, good for every purpose until avoided; the children are legitimate; the-survivor is entitled to the rights of a husband or wife, and the wife is entitled to dower. During the existence of the voidable marriage neither party can marry again.”
On the other hand if a marriage be absolutely void and not merely voidable, it may be attacked to defeat the dower given by statute to the widow. [Higgins v. Breen, 9 Mo. l. c. 497.] Such attack is palpably a collateral attack. It should be kept in mind that we are-not dealing with divorce; that the case is not one for a divorce — for the finger of death has long ago written and entered herein an unappealable final decree — but a suit in a court of equity for annulment of a marriage-averred to be void ab initio for lack of mental capacity to consent to it. The distinction between an action for divorce from the bonds of a valid marriage and an action in a court of equity to annul a void or voidable marriage as applied to our Missouri statutes, seems to-be that the latter largely follows the ancient jurisdiction of equity (Meredith v. Meredith, 79 Mo. App. 636; Ridgely v. Ridgely, 79 Md. 298) and lies for causes existing at or before the marriage, while the former lies for causes which arose subsequent to the marriage, or for causes of which (though existing at the time of the marriage) the party seeking annulment was in ignor*730anee. [Pyott v. Pyott, 191 Ill. 280.] “A right of action for the annulment of. a marriage accrues immediately upon knowledge or discovery of the invalidating fact or circumstances, and, unless sooner barred by some Statute of Limitation, continues until the marriage is dissolved by the death of one of the parties, after which event no decree of nullity will be made except under very exceptional circumstances.” [26 Cyc. 909.] Happily we need not here inquire or rule whether in any case it be or be not against good morals to allow collateral kin and heirs, or any other heirs to overturn a marriage after the death of one of the spouses for mere lucre’s sake upon some one or more of the many grounds of equity jurisprudence. We rest upon solid ground in ruling, that in no event can a marriage which is not absolutely void, but merely voidable, be attacked in equity by the heirs of a deceased spouse after the death of the other spouse. [1 Bishop, Marriage and Divorce, 292.] Since the marriage in the instant case was entered into in the State of Arkansas its validity is to be construed by the Arkansas statute (Banks v. Galbraith, 149 Mo. l. c. 536; 26 Cyc. 829; 2 Nelson, Divorce and Separation, sec. 568, supra), which makes it voidable only.
We concede that there exists much contrariety of opinion upon the question of whether the well-settled rule which requires the “validity of a marriage” to be tested by the lex loci, connotes within the purview of this validity, not alone matters of form and ceremony, but the more intimate matters of the inherent nature, force and effect of the contract thus made. In other words, if such a contract be only voidable by the lex loci, will it nevertheless be void by the lex domicilii, if it would have been void in the place of domicile if entered into there? That the converse is almost universally true, i. e., that a marriage void where celebrated is void everywhere else, there can be little doubt. [26 Cyc. 831, and cases cited.] We cannot find *731that this point has ever been considered or passed upon directly in this State; though by the most obvious analogy, we have agreed to it. For example, we have held marriages according to the Indian- customs and forms valid, even though such marriages in form and ceremony scarcely reached the status of a common-law marriage and notwithstanding such marriages recognized the right of the husband to dissolve the same and put away the wife at his — and even at either spouse’s — volition. [Boyer v. Dively, 58 Mo. l. c. 520; Johnson v. Johnson, 30 Mo. 72.] A contrary view is said to be taken in England (Brook v. Brook, 9 H. L. Cas. 193) and seemingly upon principle in some of the American States, yet the reasons for these holdings will be found to be bottomed for the most part upon the fact that the marriage held to be invalid (though valid where celebrated) violates some distinctive policy of the State or country of the domicile, e. g., laws against incest, polygamy, or miscegenation. [Hills v. State, 61 Neb. 589, 57 L. R. A. 155, and cases cited in note.] In the very excellent and carefully considered note appended to the above case, the learned author, at page 173 (57 L. R. A.), says:
“The doctrine that best accords with the decisions, though there is a decided conflict of authority on the point, is that the lex loci governs with respect to the matrimonial capacity of the parties, as well as with respect to the manner or form of solemnization. . . . In some of the cases the decisions condemning marriages celebrated elsewhere between persons domiciled at the forum are apparently referred to the principle that the lex domicilia, and not the lex loci, governs with respect to matrimonial capacity; but, as pointed out, supra, most of these decisions are, at least, so far as their facts are concerned, explainable upon the theory that the marriage in question was contrary to the distinctive public policy of the forum. When that is the case, it is, of course immaterial for practical *732purposes whether the lex domicilii or the lex loci be regarded as the general doctrine, since, even if the latter be adopted as such, it will not apply to the particular ease. When, however, the marriage is not contrary to the distinctive public policy of the forum, it may be of vital importance whether the lex loci or the lex domicilia is adopted as the test of matrimonial capacity, and it is apparent that eases of this kind are entitled to greater weight upon the question whether the lex loci or the lex domicilia governs, than cases in which it was not necessary to choose between the two. When due attention is paid to this distinction, it is believed that the weight of authority, in America at least, will be found to establish the lex loci rather than the lex domicilia as the general test of matrimonial ca^ paeity, subject to the exceptions referred to.”
The view to which we here lend our concurrence is., likewise approved in Ruling Case Law, wherein the rule is thus stated:
“There are expressions in the opinions in some of the cases which seem to favor the very questionable doctrine that, while the lex loci governs with respect to-matters affecting the manner or mode of solemnization of the marriage and the preliminaries thereof, the question of matrimonial capacity is to be determined by the lex domicilia; and some of the decisions seem to be the result of the application of that doctrine. This is particularly true in the case of the English decisions. But most of these cases can readily be classified into one of the two well-recognized exceptions to the general rule — first, marriages which are polygamous, or which are incestuous according to the general view of Christendom; and secondly, marriages which the local lawmaking power has declared shall not be allowed any validity. By the first exception the Christian standard of marriage is applied to every marriage, wherever celebrated and without reference to the domicile of the parties at the time of its celebrar *733tion. If the marriage falls below this standard, it will be held void although it may be valid according to the lex loci and lex domicilia. In regard to the second exception the legislature has, beyond all possible question, the power to enact what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed or between parties who left the state of domicile for the purpose of avoiding its statute, when they come or return to the state; and some of the states have in terms legislated on the subject. In conclusion it may be said that the better rule in this country, supported by some authority in England, and the one in truest accord with advancing conceptions of justice is that capacity or incapacity to marry depends on the law of the place where the marriage is celebrated, and not on that of the domicile of the parties.” [5 R. C. L. 998.]
Since then the marriage is merely voidable and one of the spouses is dead, it may not be attacked here by those whose sole interest in it is sordid.
Marriage: Evidence.
III. We could well have reached this same conclusion upon another ground, to-wit, that of the weight of the evidence. It is but a reiteration of the holding in a thousand books to say that since this is an equity ease we try it de novo and may find contrary to the finding of the learned chancellor who tried it below, if we believe the weight of the evidence so falls; but that when the evidence is so evenly balanced as to leave us in doubt where the superior weight of credibility lies, we may •defer to the finding of the court below. [Morgan County Coal Co. v. Halderman, 254 Mo. 596.]
Upon this view we need not rely upon the holding .alone of the learned chancellor; we may defer if we see fit from its persuasiveness to the finding upon the ques*734tions of fact involved, to the decisions of the Kansas City Court of Appeals, and to the ruling of yet another chancellor. For upon a motion in this case to dissolve the preliminary injunction herein issued and upon the dissolution thereof an appeal was prosecuted to the Kansas City Court of Appeals. The evidence upon which the case was tried upon that phase seems to have been practically identical with that in the instant case. Nevertheless, that court (Henderson v. Henderson, supra) refused to disturb the finding of the court below, holding that “it cannot be said that that [the evidence] of plaintiffs perceptibly overbalances or outweighs that of defendant.” [Henderson v. Henderson, 141 Mo. App. l. c. 559.] It does not perceptibly militate against this view that the learned Court of Appeals was to an extent also considering the aspect of fraud, which charge has since been waived by plaintiffs in their briefs. The weight of the facts which in this case would abrogate it for the one cause would also serve to nullify it for the other.
The Court of Appeals set forth in the case supra all of the facts. These facts may be read in the opinion of that court, so we need not again print them in our reports. They stand there in that case just as they would stand here were we to set them forth again; indeed, it may well be that the Court of Appeals could have made them far stronger in favor of the views held by it, than it did make them. Two courts nisi and the Court of Appeals have weighed these identical facts and have held that there was no such clear and cogent proof of lack of mental capacity as the law exacts. [Payne v. Burdette, 84 Mo. App. 332; Slais v. Slais, 9 Mo. App. 96; Meredith v. Meredith, 79 Mo. App. 636.] With their findings and conclusions of fact we heartily agree. Touching this point and another here important, the learned judge who wrote the opinion for the court in Henderson v. Henderson, supra, at page 559 said:
*735“If we are wrong in onr conclusion as to the weight of the most credible evidence, it must be conceded that there is such a conflict in that respect, that it cannot be said that that of plaintiffs perceptibly overbalances or outweighs that of defendant. In order to authorize a decree, a.t this late day, after the death of one of the parties, annulling the marriage on the ground of want of capacity of the deceased, such want of capacity should be shown by evidence clear and cogent, as a court of equity in such a case will not weigh the pros and cons in order to determine to a nicety which way the scales preponderate. There is something more at stake than an ordinary contest over the rights of property. Figuratively speaking it is a resurrection of the dead and demanding the severance of a tie he contracted in the flesh. The infirmities of his mind, and the afflictions of his body and the inmost secrets of his private life are laid bare to public scrutiny.
“We do not want to be understood as entertaining the opinion that the remedy should be denied in all instances, for we can well understand that the circumstances may be such as would demand the intervention of a court of equity, where to withhold its aid would effectuate a grevious wrong. But this is not a case of that kind, at best it is but a struggle for property.’’
It follows that for both or either of the reasons set forth above, the judgment should be affirmed. Let this be done.
Graves, Bond and Blair, JJ., concur; Broion, J., concurs in paragraphs one and three and in the result; Woodson, C. J., concurs in separate opinion; Walker, J., dissents in opinion filed.