concurring.—I concur in the judgment of reversal. If the appellant is the widow of Joseph M. Wood, she is entitled to a family allowance. If the Reno marriage was lawful in Nevada, it is valid here (Civ. Code, sec. 63), and if at the date of the Reno marriage plaintiff was an unmarried person, the marriage was lawful in Nevada. Whether she was an unmarried person depends upon the proper construction of a few sections of our Civil Code.

A marriage is dissolved by death or by divorce. (Civ. Code, sec. 90.) “The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons.” (See. 91.)

This section should always have been read with the qualification that the decree must be final and irreversible; that is to say, the status of an unmarried person should never have been held to accrue until the time for appealing had elapsed, or, in case of an appeal taken, until an affirmance of the decree by the court of last resort. But it has been otherwise construed. This court has decided that a divorced person becomes an unmarried person immediately upon the rendition of the decree, and many marriages have been entered into, pending the right of appeal, under license of that construction. It is too late, therefore, for this court to adopt another.

The amendment of February 25, 1897, to section 61 of the Civil Code was probably intended by its author to remedy the anomalous condition of our marriage law resulting from the construction theretofore placed upon section 91 of the Civil Code, under which a husband or wife could be taken subject to the contingency of being displaced by the reversal of an appealable, and possibly erroneous, decree.

Unfortunately, however, the sections (90 and 91) that required amendment were overlooked, and an amendment ingrafted upon section 61, which cannot be held to affect a marriage celebrated in a foreign jurisdiction without running counter to the current of decision in the courts of the United States, and at least one decision of this court. (Pearson v. Pearson, 51 Cal. 120 .)

If the object of the amendment was to postpone the change of status "resulting from the divorce until, and to make it dependent upon, the finality of the decree, it was wholly inadequate to that purpose. It would not even have suspended the effect of the decree during the time then allowed for taking an appeal from the judgment, for the year of suspension was to commence with the rendition of judgment, while the year limited for appealing only commenced to run from the entry of judgment,—acts often separated by considerable lapse of time. Much less would it have suspended the effect of the decree pending a decision of the appeal.

For these reasons I cannot regard the amendment of section 61 as having any effect upon the accepted construction of sections 90 and 91 of the Civil Code, and this conclusion is fortified by the consideration that an act involving consequences in their nature penal is to be strictly construed. That our marriage law requires amendment, and that the supposed intention of this amendment was a laudable one, I am fully persuaded, but that intention should be made manifest in the terms of the law, and not left to rest upon a doubtful con- ^ struction. As the law stands, and as it has been construed, my conclusion is, that the appellant became an unmarried woman when the decree of divorce was rendered; that her marriage was valid in Nevada, though forbidden by our law; that it was consequently valid here (Civ. Code, sec. 63); that she is the widow of Joseph M. Wood, and entitled to a widow’s allowance.