¶1ÜN PETITION TO REHEAR
¶2A petition to rehear has been filed by Martha Pewitt. Its first insistence is that there was no proof of a subsisting marriage between her and Maclin. She invokes Code Section 8437 wherein the Court in a divorce suit is required to hear proof notwithstanding a pro confesso or admission that the facts alleged are true.
¶3Square Pewitt testified that about two years before he filed his divorce proceedings Martha commenced to assert that she and Maclin were not divorced, and he finally became convinced of the truth of the assertion. At an appropriate time during the course of the proceedings the Court asked the attorney for Martha Pewitt whether there was any denial as to this prior subsisting marriage. He replied that there is not; that “we are proceeding on the theory of estoppel”. This Court considered the above testimony sufficient, but the petition to rehear says that there should not “be used against her what is nothing more than a courteous answer of petitioner’s counsel to a direct question on the part of the Court”.
¶4The point made by the insistence just stated is that an'admission of counsel in behalf of his client during the course of a trial is not evidence. We do not so understand the law. In Gates v. Brinkley, 72 Tenn. 710, 714, 715, the Court said: “We do not see, however, why there may not be other modes of ascertaining the fact as conclusive as the return of an execution satisfied. As, *242for instance, the admission of the parties by themselves or their counsel. — We accepted their statement of the facts to be entirely correct, and for that reason did not deem it necessary to require other evidence.”
¶5Aside from the code section invoked being fully complied with in fact by the evidence stated, there is likewise a compliance with its intent, to wit, to avoid collusion. This spirited petition to rehear is quite conclusive of the fact that this case is far removed from anything that smacks of collusion.
¶6The further and last insistence in substance of the petition to rehear may be stated by this quotation from that petition: “Petitioner is the wife of Square Pewitt because of a lawful marriage, but even more so because he cannot deny it. Have your Honors considered this point we respectfully ask?1 Please consider that Square Pewitt is estopped to deny the validity of his marriage. ’ ’
¶7The insistences just stated were the exact questions decided in the rather lengthy opinion now under attack. The argument in the petition to rehear in support of these insistences is in fact a re-argument of that which already has been so well said by counsel for Martha Pewitt. Moreover, anything which we might say in response to this repetition only would be likewise a repetition upon our part of that previously stated and could, therefore, servé no useful purpose.
¶8The petition to rehear seems to overlook the distinction made, on the one hand, between marriage not entered into in the manner required by law between parties capable of entering into the marriage contract, and, on the other hand, such marriage ceremonies between parties, one or both of whom were incapable of entering into such contract. As pointed out in our opinion, in the first class of cases where the parties have lived together *243for a number of years as man and wife, the Court presumes a subsequent marriage, in accordance with the policy of the law to protect marriage with every presumption of legality. That point is made in practically every case to which petitioner refers in his petition to rehear; and that distinction is emphasized in our original opinion with reference to these.very cases.
¶9On the other hand, as pointed out in the opinion now under attach, and by quotations therein from these cases, such a presumption is not and cannot be indulged in those cases where either of the parties was incapable of entering into the second marriage.
¶10The only new authorities mentioned in the petition to rehear are Diehl v. Jones, 170 Tenn. 217, 94 S. W. (2d) 47, and Duggan v. Ogle, 25 Tenn. App. 467, 159 S. W. (2d) 834. Upon further reflection counsel will see that .those cases have no application to the question with which we were dealing. They involved only the legitimacy of children by reason of Code Section 8453, as amended by the 1932 Code. There are no children involved in the case at bar.
¶11The conclusion which this Court reached, borrowing an expression used by this Court in a recent case, “is not so much the will of the Court, as it is the will of the law”; and so, with reference to the earnest appeal as to equity, we can only respond that “equity follows the law”. “Where there is no legal liability, equity can create none”. Henderson v. Overton, 10 Tenn. 394, 397. Equity cannot apply a remedy where there is no right. Vanderbilt University v. Williams, 152 Tenn. 664, 674, 280 S. W. 689.
¶12The petition to rehear is denied.