(concurring). — This case was first assigned to Division Number Two of this court, and after being argued and submitted, was decided by a divided court. For that reason, on motion, the cause was transferred to Court in Banc, where the cause was *736reargued and submitted. At that time I field a dissenting opinion to the divisional opinion, which was submitted for acceptance or rejection. The divisional opinion was rejected by a majority of the members of the court, and assigned to Brother Paris to rewrite, which in my opinion from his viewpoint has been well done, but not fr mi mine, in certain respects.
• I therefore refile herein my dissenting opinion heretofore filed to the divisional opinion, as a concurring opinion in the result of the majority opinion filed in Banc.
I wish here to add a query, viz: If, under the Arkansas ■ statute the contract of marriage was only voidable, as my learned associate holds, and yet not personal to the deceased and his wife (as I contended it was), then, by analogy and painty of reasoning, why may not the collateral relatives in this case attack the voidable contract as well as a void one! In either view of the case I respectfully submit that if the contract of marriage is not personal to the contracting-parties, then no valid reason can exist to prevent the heirs from contesting the one, if they have the legal right to contest the other.
According to the majority opinion nothing but the title to the land is or can be involved in this case, beyond a suit against a dead man, who has and can have no representation to contest the validity of such a contract.
This must be self-evident.
For the reason suggested I concur in the result reached in the majority opinion, and as a further amplification of my reasons I here append my dissent from the opinion written in this case by my learned Brother in Division Two, both as to the conclusions of facts found and the principle of law applied thereto.
I. After a careful reading and due consideration of the voluminous record in this case I have reached *737the conclusion that Ernest Henderson, deceased, the husband of Helen R. Henderson, the principal defendant herein, was mentally capable of contracting the marriage with her, mentioned in the pleading and evidence.
This alone in my opinion should constitute a finality of this case in favor of the defendants; hut these observations regard only the parties to this suit, while the principles of law announced therein, if adhered to, would be far reaching and in the future effect the entire State.
For the reason stated I hereby wish to vigorously state my opposition to any and all lax, flexible and loose rules of law which will permit the craving for dollars and cents to question the validity of a marriage after the death of one or both of the contracting parties.
With no design to criticise any one, but with due deference to all, I must insist that, in my opinion, no court, after due consideration of the marriage contract, the marriage and domestic relations that exist between man and wife, taken in connection with the great interest that society has in those matters, and their far-reaching influence-and effect upon all government, as well as upon mankind itself, can, with any shadow of reason, justification or devotion to country, after the death of one of the parties to the contract, neither of whom ever objected thereto, write the words, “I hereby in the name of the law, burst asunder that which God has joined together;.” and especially when the love of money, the root of all evil, constitutes the sordid wedge relentlessly driven into the sacred memory of the holy bond of matrimony, and that too, after the God with whose permission it was tied, has in his wisdom called one of the contracting parties unto himself to be judged according to the book of life.
*738II. What is it, that plaintiffs, the collateral heirs at law of Ernest L. Henderson, ask this court to do ? Answer: First, to divorce said Ernest L. Henderson, deceased, from Plelen R. Henderson, his surviving widow; and, second, to restrain her and her codefendants (who are acting for her) from receiving and enjoying any of the property her husband died seized of, ' which under the laws of the State belong to her as an incident of the marriag’e.
In other words, plaintiffs claim that at the time Ernest L. Henderson married the defendant, Helen R. Henderson, he was insane, so unsound in mind that he did not know or understand what he was doing, therefore the contract of marriage entered into by and between them and solemnized in conformity to the laws of God and man, was absolutely null and void, notwithstanding the fact that thereafter they lived together for many months, if not for years (I disremember the exact time), as man and wife, without objection or protest from the plaintiffs or any one else, until his death separated them and thereby unlocked the doors to the vaults of gold here claimed by his collateral heirs.
Now, how do they propose to accomplish that end? Answer: By inducing this court to solemnly decree said marriage contract, entered into by and between them, solemnized according to law, dissolved and for naught held.
What was that contract, after having been so solemnized? Answer: It was a marriage — a status which the law, by their agreement, placed upon them.
In litigation that status or that relation is defined to be the res or the subject-matter of the suit, and consequently in the very nature of things, a divorce’ suit or any proceeding to dissolve that relation must in the very nature of things be a proceeding in rem. [Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223.]
This is the basis upon which all suits for divorce and all proceedings to dissolve a marriage are predi*739catecl. The husband and the wife during their lifetime are and must be the parties to the suit, either in their own persons or in the names of their representatives; and the subject-matter of all such suits is the marriage contract — that is, the' marriage relation — the res.
This is true of all the States of the Union, and is recognized in many cases by the Supreme Court of the United States. In fact, such a suit or proceeding could not in the very nature of things be maintained except upon that theory.
To illustrate: Suppose no property rights were involved, and for many reasons a dissolution of an unholy alliance even after the death of one of the parties, might be desired by friends and relatives, grounded upon reasons more sacred and valuable than red gold; who, under the law, in such a suit would or could represent the deceased party to the contract? No one, of course, for the obvious reason that all suits, civil and criminal, must have a party or parties and a subject-matter of the smt — otherwise there would be nothing for the court to adjudicate.
This is true, although in a sense somewhat modified even in ex parte proceedings and proceedings in rem, which are familiar to the bench and bar.
The identical question here presented was decided by this court in the case of Lieber v. Lieber, 239 Mo. 1. The only difference between the facts of that case and this was: In that case the marriage had been dissolved, first, by a decree of court, while both parties were living, and, second, by the death of Mr. Lieber some forty years subsequent thereto, both having occurred prior to the institution of that suit; while in the case at bar, the marriage was dissolved by the death of Mr. Henderson before this suit was instituted. So it is perfectly apparent that, in so far as this question is concerned, there was no difference whatever between the legal propositions involved in the two *740cases. In discussing this question in that case, the court on pag’e 55 used this language:
“Not only does the record upon its face show that this suit is only a collateral attack upon the Illinois decree for divorce, but it also shows that in the very nature of things a direct proceeding for that purpose could not possibly have been brought and maintained, for the simple reason that a judgment in a divorce case is one in rem (Gould v. Crow, 57 Mo. 200), and Alexander Lieber, the plaintiff, in whose favor that judgment was rendered, is dead. He, therefore, could not have been made a party to such a suit, nor could such a suit have been maintained against him, even though it should have been instituted. Not only that, the subject-matter of such a suit is and would necessarily have to be the ‘judgment in rem/ which was rendered in the divorce suit, which in truth and in fact is nothing more or less than the dissolved marital relation, which formally existed between Alexander Lieber and Margaret Lieber. That judgment in rem, or dissolved relationship, would not descend to his heirs, nor would it pass into the hands of his executor or administrator. Consequently there could be no person or thing represented in any such suit after one of the parties thereto has died. This is clearly the reason why counsel did not bring a direct bill in equity to set aside the Illinois decree for divorce.”
The same general principle of law was announced by Judge Lamm in the case of Bishop v. Brittain Investment Co., 229 Mo. 699, in the discussion of the admissibility of the testimony of the surviving party when the other party to the cause of action, the marriage contract, in issue and on trial was dead. The Lieber case was largely based upon the principle of law announced in that case, as will be seen by the following quotation taken from pages 27 and 28 of the Lieber case:
*741“In the ease at bar, the plaintiff’s right to a homestead in the lands of Alexander Lieber depends just as much upon the existence of the marital relation between her and him, at the date of his death, as did Mrs. Bishop’s right to dower in the lands of the Investment Company ‘hinge on a contract of matrimony and its performance’ with Dr. Bishop. And as was there said by Judge Lamm, ‘that was the issue tried;’ and here, the question tried is, was Margaret Lieber the wife of Alexander Lieber at the time of his death?
“If he was divorced from her at that time, then she was not his wife, and she was no more competent to testify'regarding the divorce proceedings than was Mrs. Bishop qualified to testify regarding her alleged .marriage to Dr. Bishop.'
“That the decree for divorce was granted in the case of Alexander Lieber against Margaret Lieber, there is no question. In fact, plaintiff’s amended pe- - tition, and entire case, proceeds upon the theory that the decree was granted and valid upon its face, and for that reason she seeks to have it set aside and that it was procured by fraud.
“Now concede, for the sake of the argument, that this decree is impeachable in this character of a proceeding, which I deny, nevertheless, it being fair and regular upon its face, it is entitled to full faith and credit until impeached and set aside upon competent testimony. That being unquestionably true, it cannot be legally said that Margaret Lieber was the wife of Alexander Lieber at the time of his death.
“The only difference between the two cases is the fact that the contract of marriage, which was one of the constituent elements of the cause of action in issue and on trial in that case, if entered into, made Dr. Bishop and the plaintiff there husband and wife, and consequently entitled her to dower; while in the case at bar the decree of divorce, it is admitted, destroyed the marital relation which existed between Alexander *742Lieber and Margaret Lieber, and as an incident thereto destroyed her right to a homestead in his lands, until, at least, the same is set aside and for naught held, which is sought to be done in this case, and that decree, therefore, being one of the necessary constituent elements of plaintiff’s case, is equally in issue and on trial here, as was the marriage contract in the Bishop case, and consequently since Alexander Lieber, the other -party to that cause of action is dead, Margaret Lieber the surviving party thereto, under the authorities cited, is disqualified as a witness to testify in this cause, touching the impeachment of that decree.
“We are, therefore, clearly of the opinion, that the plaintiff was not a competent witness in this case, to testify, as she did, to matters- regarding or tending to impeach the decree of divorce rendered by the circuit court of Mercer county, Illinois, in the case,of Alexander Lieber against Margaret Lieber, the defendant there, and the plaintiff here.”
Prom these observations it must be apparent to every one that it is not .only a legal but a physical im~ joossibility for a court to dissolve the marriag-e contract, the res, after it has been completely and forever severed by the death of one or both of the parties thereto, which according to its express terms was to endure for life only, and upon the authority of the Savior, there is no marriage in Heaven.
Prom this it is seen that while marriag-e, divorce and death may and do have something to do with the acquisition and disposition of real estate, yet not in the sense that it is acquired or disposed of by deeds of conveyance executed by and between the parties thereto, but solely in the sense that the law, in all such cases, of its own operation purely as an incident to the marriage, divorce and death gives and disposes of those classes of property denominated marital rights and inheritances. Neither man nor court has any con*743trol whatever over such acquisitions or dispositions of property.
Man and women with the sanction of the law may marry; the courts at the request of either party, for good cause shown, may dissolve the marriage, and death of the one always does so; but neither given the property, but the law, as before stated, as an incident thereto, bestows the property upon those designated by the law, when those conditions arise.
It must therefore be apparent that after the law has thus bestowed the property upon the parties designated purely as an incidental matter, the courts cannot take hold of that incident as a makeshift, and through that assume jurisdiction over the marriage contract and dissolve it when the death of one of the parties had dissolved it long before, and especially should that be true when the dead party is not and cannot in any possible way be represented.
Such a proceeding might and doubtless would, in many cases, prevent man and wife from saying that his or her property should go to the survivor under the law, or to their children.
If the dead lives in the Lord, then such a decree as here asked for would put the deceased to shame, and at the same time cast odium upon his wife and children.
Shame upon such a law — if it be a law.