(dissenting).
In my view this decision does not properly follow or deal with the precedent of our former decisions, and therefore, this may add confusion to the question of what is the law in Oklahoma as applied to such a difficult situation.
The reason for dissenting is that, as I view it, we have several times heretofore held to the contrary as a matter of law, and those former decisions have not been over*441ruled, and, though not followed, are not •overruled here; so that until this decision, I thought we had come to the view and legal philosophy in this state, and so announced in our decisions, that when a ceremonial marriage had been fully consummated between two wholly competent parties, that the marital relationship would exist and continue on and on, until dissolved by death of one of the parties, or until •dissolved by judicial decree of annulment •or divorcement, and that such marital relationship could not be canceled out merely by the voluntary acts of the parties, whether those acts were by agreement, or whether they were wrongful acts, and that neither party to such matrimonial relationship could interrupt the continued existence of the same merely by some voluntary act of such party, even though such voluntary act was a wrongful act, or even if it was the act of purporting by ceremony to marry some other person followed by their living together as though legally married.
In Copeland v. Copeland, 73 Okl. 252, 175 P. 764, the woman standing as claimant there, the same as claimant here, and the man were married in Arkansas in 1877. The man moved to the Indian Territory. In 1881 the woman, claimant, married another man in Arkansas, and in 1899 the man married another woman in the Indian Territory. Upon death of the man in 1914, the question arose whether the woman, •claimant, could assert the continuing marriage relationship between her and the man. The action was of course there, as here, between the first wife, or claimant, and the second wife on the other side. There the court held in the syllabus:
“Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or lawful separation. Syllabus, Haile v. Haile, 40 Okla. 101, 135 P. 1143.
“The evidence of the plaintiffs in this cause, who attack the validity of the marriage of one of the defendants on the ground that she married a person who had a wife living and undi-vorced, is examined, and held sufficient to meet the above requirements.”
There, as here, the trial court found in favor of the second wife, but upon appeal that court was reversed and judgment was rendered in favor of the plaintiff, claimant.
In the case of Brokeshoulder v. Brokeshoulder, 84 Okl. 249, 204 P. 284, 34 A.L.R. 441, the first wife, or claimant, and the man were married in 1908 in Kemper County, Mississippi. In 1912 the man left Mississippi and came alone to Oklahoma, where in 1914 he married the second wife, without any divorcement having occurred between the man and the woman who still resided in Kemper County, Mississippi. Though immaterial perhaps, the first wife or claimant, did file a suit for divorce in Mississippi, but that case went no further than the filing of the petition and there was no hearing or judgment or divorcement. In Kemper County, Mississippi, the first wife or claimant married another man in 1915, and thus the situation remained until March, 1920, when the man died in Johnston County, Oklahoma. The question was whether the first wife as claimant and as plaintiff could rely on this first marriage. There the trial court found for the defendant, that is, the second wife, but on appeal this court, citing the Copeland case, supra, reversed and held in favor of the first wife, who was the claimant and in the same position as the claimant in this case.
In the case of Cox v. Cox, 95 Okl. 14, 217 P. 493, 34 A.L.R. 432, the woman claimant and the man were married in Oklahoma in 1918. Two months later the woman claimant left her husband and in another county in Oklahoma in May, 1920, married another man with whom she continued to live until the death of the decedent in August, 1920, that is, her first hus*442band. There was never any judicial annulment or divorcement between the woman claimant and her first husband. On his death the question arose whether the claimant could continue to claim and to establish the matrimonial relationship based on the first marriage, and could claim as the surviving widow of the man. There, as in the other cases, the trial court held against the claimant wife and on appeal this court reversed the lower court judgment, and it was specifically held as follows:
“Who takes, and to what extent, the property of an intestate decedent, is for legislative determination, and the courts can write no limitations into such statutes.
“The statute fixes the interest which the wife takes in the property of her deceased husband, and no exception is made on account of her conduct, criminal or otherwise.
“Although the wife deserts her husband, and enters into a bigamous marriage with another, with whom she lives until her husband’s death, in the absence of a statute, she cannot be precluded or estopped from asserting her interest in his estate.”
That case likewise cited and followed the case of Copeland v. Copeland, supra.
I would direct special attention to the late case of United States v. McCarty, 10 Cir., 144 F.2d 341, where the holding of the court is set forth in paragraph two of the syllabus:
“Under Oklahoma law the statutory law of succession or descent is not controlled by equitable considerations, and a surviving spouse is not estopped from inheriting from deceased spouse because surviving spouse abandoned deceased spouse long before and entered into a pretended marriage relationship with another. 84 O.S.1941, § 213.”
In that case the court stated in the opinion as follows:
“Under Oklahoma law of descent and distribution, if any person die seized of any estate which is not limited by marriage contract or testamentary disposition, leaving a surviving-spouse and one child, the estate must, descend to the surviving spouse and. one child in equal shares. 84 O.S.A.. § 213. Fred Norton, not having been legally divorced from Sallie Norton,, was her lawful husband at the time of her decease, although he had long since-abandoned her and entered into a pretended marriage with .another woman. Copeland v. Copeland, 73 Okla. 252, 175 P. 764; Cox v. Cox, 95 Okla. 14, 217 P. 493, 495, 34 A.L.R. 432. It. follows therefore that under the mandate of the statute, he is entitled to share equally with the son in the lands of Sallie Norton as a surviving husband, unless by his unfaithful and unworthy conduct he is estopped to assert his statutory right.
“This identical question was squarely presented to the Oklahoma Supreme Court in Cox v. Cox, supra, and the-majority held that unless forbidden by statute, one spouse did not forfeit his- or her statutory right to inherit from the deceased spouse although he or she may have abandoned the deceased spouse long before and entered into a pretended marriage relationship with another. The court said it had ⅛0 alternative except to follow the rules of descent or succession as prescribed by the legislative branch of the government,’ citing with approval the case of Nolan v. Doss, 133 Ala. 259, 31 So. 969, 970, in which the Alabama court was likewise constrained to follow the mandate of a statute which provided that the personal estate of persons dying intestate without issue should descend to the widow. In holding that the bigamous misconditct of the wife was immaterial to the issue of inheritance under the statute, the Alabama court said that since the statute made no exceptions on account of the wife’s conduct, even in cases of voluntary abandonment, ‘the law, as it is written, *443is plain, and is not within the province of the courts to ingraft upon it any exceptions. As long as the marriage relation, in law, continues, just so long the rights of the wife under the statute exists.’
⅜ ⅜ ⅜ * ⅝ ⅜
“ * * * The rule is founded upon the principle that the statutory law of succession or descent is not controlled by equitable considerations. In the very early case of Stegall v. Stegall, 22 Fed.Cas. page 1226, No. 13,351, it was held that a claim of a lawful wife to a distributive share of her husband’s estate granted by statute was an absolute right of which she could not be deprived by a court of equity, however unworthy and reprehensible her conduct may have been when judged by equitable considerations. * * * ”
“We cannot bring ourselves to the supposition that the Supreme Court of Oklahoma intended to overrule a doctrine so clear-cut and emphatically established without notice or reference to the case which so clearly announced it. We conclude that, the Cox case is yet applicable and controlling of our question, and the judgment is affirmed.”
This court consistently held before the new statute in 1915 that a man could not be prevented from inheriting from his wife though he murdered her. Holloway v. McCormick, 41 Okl. 1, 136 P. 1111, 50 L.R.A., N.S., 536, and De Graffenreid v. Iowa Land & Trust Co., 20 Okl. 687, 95 P. 624.
All these holdings are founded on the legal philosophy that inheritance is based on the expressed provisions of statutes, and upon nothing else, and those statutory rules cannot be changed upon any equitable consideration or any equitable principle.
In this case Rose the woman claimant is entitled to inherit from this man by our former decisions, and by statute, if she was legally his wife when he died, (though, in the opinion of some, not then his wife equitably or in good conscience,) since this is purely a matter of statutory law.
I really do think that this rule and the rule of the -.above cited Oklahoma cases should be followed and applied in this case, in the interest of administering even justice to all alike, since those cases have not heretofore been overruled and are not overruled in this case.
So the question is was Rose legally the wife of decedent at time of his death?
They were certainly legally married in 1893. That was the evidence. The trial court so found and the majority opinion does not question that finding.
How long then did that legal marriage exist? When did it terminate? Did that legal marriage cease to exist on the happening of any one or all of the things emphasized in the majority opinion, that is:
One — When the decedent remarried in the year 1905 ?
Two — When Rose remarried in the year 1907?
Three — When decedent married again in 1921 ?
Four — When future children were born to decedent or to Rose ?
Five — -When Rose and decedent each discovered that the other was living with a subsequent spouse?
Six — When she failed to claim that she was his wife for a period of years before he died?
Would it be of any importance that for a period of years before his death Rose “never claimed to be testator’s wife ? ” It was not found important in our other cases. This I suppose because under statute heirship depends upon legal relationship, not upon congenial association or upon any association together at all, not upon a claim or lack of claim of relationship before the decedent died, but on the existence of the legal relationship itself, and upon that alone.
If a living person actually bore a legal relationship to a decedent entitling him or her to inherit part of the estate by statute, *444no failure for years to claim that relationship before decedent died could affect the right to inherit.
Now a failure to claim a legal relationship for years might be material if there is any question or contest as to whether the legal relationship ever existed. But here it is conceded by all that Rose and the decedent were legally married in 1893.
None of these things or items above listr ed are sufficient to terminate this legal marriage under our former decisions and by statute. The only way a legal marriage may terminate before death is by judicial annulment or divorcement.
So the question arises were these parties divorced ?
Of course in this action the burden was on Rose to prove that there had not been a divorce. She offered evidence to prove that she had not obtained a divorce, and there was no contrary evidence on that. She also offered evidence that decedent had not obtained any divorce from her, and there was no contrary evidence on that point.
The trial court found that the evidence was not sufficient to establish the fact that she had not obtained a divorce. If the majority desire to affirm on that ground, then that stated conclusion would dispose of the case without more, but evidently that specific finding could not be sustained under the record.
The trial court affirmatively found that decedent did not obtain a divorce from Rose. The majority opinion, near the end thereof, seems to be founded on the conclusion that this finding by the trial court, “is, in fact, clearly contrary to the evidence.” But the opinion points to no evidence “that testator did obtain a divorce.” All the evidence is to the contrary.
It seems to me it is absolutely necessary that there be some evidence that he did obtain a divorce before the finding of the trial court that he did not obtain a divorce could be “clearly contrary to the evidence.”
The majority opinion emphasizes the conclusion or presumption that the decedent “was of the opinion that his marriage to Rose had been terminated by divorce.”
Could we speculate further that he thought he had obtained a divorce and therefore this is the evidence which the trial court clearly contraried in finding the decedent did not obtain a divorce ?
But I doubt if his opinion, or our presumption as to his opinion, should be given any weight at all as evidence.
And if there is any question as to whether he obtained a divorce why not reverse for further trial on that point ?
In final analysis it seems to me that we have a case where decedent and Rose were legally married. Thereafter each acted as if there had been a divorce, but under this record there had been no divorce.
Perhaps each assumed the other had obtained a divorce, but this record demonstrates that neither had done so.
If the majority adopts and adheres to the rule that these actions of the parties, and these presumptions of opinions and assumptions of the parties are sufficient to terminate the legal marriage of decedent and Rose, then it seems to me the court has departed from the rule of former decisions though without overruling them.
The facts in Copeland, 73 Okl. and 175 P.; Brokeshoulder, 84 Okl. and 204 P.; Cox, 95 Okl. and 217 P., all supra, very closely parallel the facts here. No legal or material distinction appears. The rule of those cases should not be overlooked in this, case. The contentions and legal questions, presented in those cases and in this one are essentially the same, or significantly similar.
The quotation in the majority opinion demonstrates the material distinction between this case and the Coachman v. Sims case in that there as quoted “the evidence is entirely silent” as to whether the former wife had been divorced, while here there is some evidence that neither spouse obtained a divorce. The record here is not “entirely silent” on the point.