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Re ESTATE OF Thomas Mifflin JONES, Jr., Deceased.

(211 Pa. 364.)

1. The procuring, by the legatee, of an absolute divorce subsequent to the execu

tion of the will, does not cause the lapse of

a legacy which testator creates for his "wife" by name.

2. The granting of an absolute divorce does not revoke by implication a legacy in the will of the husband in favor of the wife.

(Mitchell, Ch. J., dissents.)

(April 10, 1905.)

NOTE. Effect of divorce to revoke gift by will. 1. Introductory, 940. II. When status mentioned in will controls. a. In general, 940.

b. When legatee is mentioned by name, 941.

III. Effect of lapse of time between divorce and testator's death, 942. IV. Effect of property settlement, 943.

I. Introductory.

as a

From the few decisions upon this question in England and in this country, it is plain that the courts, while taking into consideration all relevant circumstances tending to throw light upon the testator's intention, refrain rule from interfering with the right of a divorced legatee to take under a will executed prior to the granting of the divorce, unless from the language of the will it is, in the court's opinion. obviously testator's intention that the gift shall not go to a legatee occupying the changed relation resulting from a divorce. or unless, from some other circumstance, the court is irresistibly convinced that not to decree an implied revocation in regard to the divorced legatee on account of the divorce would be to allow something entirely contrary to the testator's desire and intention. Under such circumstances only is the doctrine of implied revocation applied.

This, it seems, is the proper course, for, if a testator had notice of divorce proceedings affecting a legatee, and thereafter made no change in his will regarding him or her when there was sufficient time and opportunity in which to do so, the presumption is strong that his will expressed his wishes and intentions. and any interference by the courts, except under the circumstances above indicated, would be an unwarranted and unjustifiable extension of the doctrine of implied revocation.

II. When status mentioned in will controls.

a. In general.

While there is strong ground for the presumption that if, after a divorce, there was opportunity and time in which a testator might have changed his will in regard to the divorced legatee, and omitted to do so, he did not care to make any change, on the other

A PPEAL by the Fidelity Title & Trust

Company, guardian of Thomas M. Jones, 3d, from a decree of the Orphans' Court of Allegheny County dismissing exceptions to the allowance of a claim to a legacy under the will of Thomas Mifflin Jones, Jr., deceased. Affirmed.

The amount for distribution was in the neighborhood of $600,000. A claim to share in this under the will of the testator was presented by his former wife.

Miller, J., the auditing judge, after setting out the stipulation as to the facts, continued as follows:

"The question presented is new. Careful

hand, there is the possibility that he might have labored under the supposition that the changed status of the legatee, resulting from the di vorce, would of itself revoke his gift. When. however, the legatee is specifically named, although also referred to as "husband" or "wife," the testator would hardly, in so important a matter, be justified in resting upon his belief that his gift had been revoked by virtue of the divorce proceedings alone, when he could so easily, if he had desired, have made changes which, without question, would set forth his intentions; and the application by the courts of the doctrine of implied revocation would, under such circumstances, seem to be unwarranted. RE JONES and the similar earlier decisions (II.. b) show that the courts have proceeded upon the above principle.

But if the legatee is not mentioned by name in the will, or even, if so mentioned, is fur ther described as "widow," or otherwise referred to in such a way that the status of marriage is, so far as can be judged from the language of the will itself, intended to exist as a condition of the gift, then there is a greater possibility that the testator might have omitted to act, under the supposition that the divorce of itself operated to revoke his gift: and under such circumstances the courts have. in a few instances, applied the doctrine of im plied revocation.

Thus, a will providing that, in case the wife of testatrix's son should survive him, an annual payment should be made to her during her widowhood, was construed to mean that the wife must occupy that status or condition at the time of the son's death so as to become his to idow, in order benefit unuer the will; and, therefore, that a decree of divorce operated to defeat her rights therein. Bell v. Smalley, 45 N. J. Eq. 478, 18 Atl. 70.

The bequest of an annuity to a wife by name, "so long as she should continue my widow and unmarried," was held to be rendered inoperative by a decree subsequently ob tained by her rendering the marriage null ab initio, on the ground that the status of widow hood was a condition of inception and a measure of the duration of the gift. Boddington v. Clairat, L. R. 25 Ch. Div. 685, following the lower court decision reported in L. R. 22 Ch. Div. 597, 48 L. T. N. S. 110.

But the decisions right at this point are not harmonious. Thus, where a will provided

research shows no adjudication by the supreme court of this state under the same conditions.

"Counsel for the guardian contend that, owing to the changed relations of the testator after his will was made, and the decree of divorce was entered against him, absolutely severing and making null and void the marriage relationship, that the law implies a revocation of his will as to this bequest; that the presumption is that he could not have intended the disposition of his property, made before his relations with his then wife were changed, to still continue after the relations by decree of absolute divorce were severed; that the bequest of one third of his estate was not to Mary Brown Jones as an individual only, but to

for the payment of an income to a son, or, in case of his death his wife surviving him, to "the widow" of the son so long as she should so remain, it was held that the words, "his wife" and "his widow" referred to the woman who occupied that relation at the time the will was made, notwithstanding they were subse quently divorced and the son married another, who survived him. Davis v. Kerr, 3 App. Div. 322, 38 N. Y. Supp. 387.

Somewhat similarly, under a will devising property in trust to a daughter, and after her death "in trust for any husband with whom she might intermarry, if he should survive her," one who had married the daughter, obtained a divorce from her, and subsequently remarried. was held entitled to take under the will, since be fulfilled all the words of the bequest, there being no expression of any intention upon the part of the testator that he must be her hus band at the date of death in order to take Bullmore v. Wynter, L. R. 22 Ch. Div. 619. 48 L. T. N. S. 309. This case, however, was disapproved in Ilitchins v. Morrieson, L. R. 40 Ch. Div. 30, which held that, under a will be queathing a share of testator's residuary per sonal estate in trust for his son and after his death in trust to pay the income thereof for life to any wife of the son, a wife from whom the son had obtained an absolute divorce cannot claim a life interest, although the son died without having remarried, since the life inter est was to commence at the death of the son, and she was not at that moment in the status and position of a wife.

b. When legatee is mentioned by name.

If, however, the testator, in making the be quest, mentions by name the husband or wife who is the legatee of the gift, besides referring to him or her as "husband" or "wife," it seems justifiable, from the decisions as they stand, together with RE JONES, to lay down as Я rule that, under such circumstances, the fact of a subsequent divorce will not affect the legatee's right to benefit under the will since the words "wife" or "husband" will be regarded as falsa demonstratio, and not words implying a condition that the legatee must occupy that relation in order to receive the gift. This conclusion has been reached in a number of decisions.

Thus, a legacy willed to his wife by name,

Mary Brown Jones, his wife; that the bequest so made to her was by reason of the marriage relation.

"The contention of counsel for the claimant is that, as to the identification of the beneficiary, the will speaks from its date when the claimant was testator's wife; that the word 'wife' identifies the beneficiary, but does not imply any condition; that the divorce did not render the legacy either void or lapsed; and that the lapse of time between the date of divorce and testator's death-about twenty months-without changing the will is conclusive of his fixed intention to confer upon her the benefit given by the will. Implied revocation of wills is an ingrafted heritage from the common law. When the conditions after the

by a testator. was upheld, although she subsequently obtained a decree declaring the mar riage null. This decision was upon the ground that the gift of the legacy to her qua wife was only a falsa demonstratio, the description of wife being merely to point out the individual. Boddington v. Clariat, L. R. 25 Ch. Div. 685. following the lower court decision reported in L. R. 22 Ch. Div. 597.

So where, by a will, testator bequeathed an annuity to his son and son's wife jointly, and, in case his son should die leaving "Eliza, his wife, bim surviving," to her as long as she should continue unmarried, the fact that the son obtained an absolute divorce from his wife was held not to prevent her from re ceiving the annuity bequeathed in the will so long as she remained unmarried, since sle was the person clearly described and designated therein. Knox v. Wells, 48 L. T. N. S. 655, 31 Week. Rep. 559.

And where a will provided for the payment of an income to testator's nephew by name, and "Rebecca, his wife," a subsequent divorce will not operate so as to effect the wife's right to benefit under the will, since she is distinctly named therein, and the words "his wife" are to be taken as mere words of description. Bullock v. Zilley, 1 N. J. Eq. 489.

And so, a bequest of the income of a certain sum to be paid to the husband of the tes tator's daughter if he should survive her, the will mentioning him by name, remains a valid and subsistent trust although the husband and wife were divorced. The court says: "We may conjecture, but we cannot be certain, that the inducing cause of the provision for Thomas Waller was that he was the husband of the testator's daughter. The relationship, however, could not have been the sole motive, since the gift is to the individual by name, and not to him simply as husband." Mellon's Estate, 28 W. N. C. 120.

And similarly, where a testator bequeathed money in trust for his son, and, in case of the latter's death, that the trust be continued for the use and benefit of the son's wife, naming her; and where, during the testator's lifetime, the son and wife were divorced upon the wife's application,-such divorce does not operate to event her from receiving the benefit of the trust so provided for by will. Sharpe's Estate, 15 W. N. C. 419. The fact that the wife was mentioned in the will by name, and

making of the will produce a change in the testator's previous obligations and duties there may arise a reasonable presumption of a change of intention in his mind. 4 Kent, Com. 54. The doctrine is stated and adopt ed in Young's Appeal, 39 Pa. 115, 80 Am. Dec. 513, as follows: 'If the testator's circumstances be so altered that new moral testamentary duties have accrued to him subsequently to the date of the will, such as may be presumed to produce a change of intention, this will amount to an implied revocation. This principle gives the fundamental reason of all the positive rules of law we have on this subject. The positive rules are given sometimes by statute and sometimes by judicial decision.' But the fact this case involved an antenuptial settlement and the subsequent birth of issue after date of the will. The revocation of the will under the facts does not apply here. Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699, is the leading case apparently sustaining the guardian's contention, and is worthy of extended notice. The parties were married in 1864. The wife obtained an absolute decree of divorce in 1889. The husband died in 1891. They executed mut wills in 1881, identical in language, each devising all their property to the other. She, by agreement, became custodian of both wills

until the divorce, when she destroyed hers, and she retained his, which action was unknown to him. In 1889, pending the divorce suit, she and he made a division of his property, he conveying to her certain real estate, she releasing her interest in the remainder to him. At the same time an agreement was executed by them in which he conveyed to her certain personal property. She released him from all demand of every sort, agreeing to pay her own expenses in the divorce proceedings, it being stated in the above-recited agreement that it and the deeds recited were intended as a property settlement between them. After his death she probated his will, and under it claimed the husband's estate. Her claim was denied, the court saying, inter alia: "The natural presumption arising from these changed relations is the reasonable one, and the one which in law implies a revocation.


. . To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which law is based.' The foregoing is one of the few adjudicated cases involving the effects of a divorce upon the precise point at isbut it differs from this, that there had been a settlement of the property rights of the parties; the court, after commenting on the effect of divorce and change of relation, saying: 'It is not, in my judgment, the court decision reported in L. R. 22 Ch. Div. 597.


and testator's death.

was the only person answering to that descrip-, tion at the date of the will, was one of the reasons which appealed to the court in coming to the above conclusion. It is said: "The III. Effect of lapse of time between divorce person intended by testator was his daughterin-law, Ada, and to add the word 'wife' was merely to still more particularly identify her. It was to designate the person, and not to imply a condition, viz., that she must be the wife of the son at the time the bequest to her took effect. She was his wife at the date of the gift to her, and that is all that is necessary."

So, in Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307, on the same day, but prior to their marriage, the prospective husband made a will giving to his intended wife by name a certain sum. She subsequently abandoned him, whereupon he obtained a divorce. The bequest to the wife was upheld, partly upon the ground that it was absolute and unconditional in its terms, and was not conditioned upon her survivorship as his widow.

But if the legatee is referred to as "widow," although also by name, that seems to be regarded as a designation by the testator of the status which the legatee must occupy in order to receive the gift. Thus, in one case where the bequest was to the wife by name "so long as she shall continue my widow and unmarried," a decree obtained by her dering the marriage void ab initio was held to the prevent her from receiving the gift on ground that the status of widowhood was a condition of the inception and measure of the duration of the gift. Boddington v. Clariat, L. R. 25 Ch. Div. 685, following the lower


The fact that, after the granting of the divorce with the knowledge of the testator, he had ample time before his death to change his will in regard to the legatee affected by the divorce, is a circumstance which is justly regarded as of great weight in support of the conclusion that he desired the provisions carried out which were embodied in his will at the time of his death.

A husband bequeathed to his wife a specified sum payable annually in lieu of dower. The following year he obtained a divorce from her, and died five years thereafter. In holding that the gift to the wife was not revoked by the divorce granted, the court declared that coverture could not be said to have been the sole motive or inducement to the will, since. after that was taken away, it still remained true that the legatee had been the testator's wife, and was the mother of his children; and, adding to this the further facts which existed in the case, that the testator was possessed of a large estate, the provision for the wife being Comparatively a mere pittance, and that he lived nearly five years after the divorce, making no change in his will, the conclusion was declared well-nigh irresistible that he did not intend to deprive his former wife of the provision he had made for her. Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187.

natural presumption that, after the testator | had settled with her, had conveyed to her a good share of his property, and they by agreement had terminated all their property as well as their marital relations, the will executed nearly ten years before should remain in force and operate upon his death as a conveyance of the remainder of his property to her to the exclusion of his heirs.'

"Our statutes provide for the revocation of wills as to real estate by some other will or codicil in writing, or other writing declaring the same, by burning, canceling, obliterating, or destroying the same; as to personal estate in the same manner, except, in addition, by a nuncupative will, made under the same circumstances, committed to writing in the lifetime of the testator, so read to and allowed by him; and by the marriage, subsequent to the making of a will, of a man leaving a widow and child or widow or child or children; and by the subsequent marriage of a single woman who had made her will. The statutes are silent as to the revocation of wills in any other manner. The language that 'no will shall be revoked,' except as therein provided, indicates a strong implication that any other revocation is prohibited. In Walker v. Hall, 34 Pa. 483, the court, after declaring the well-recognized rules of revocation, con

The fact that the will might easily have been expressly revoked, and that, on the contrary, the testator made no change in it for nearly five years after he was abandoned by his wife before he obtained a divorce from her, and more than four years after the divorce before his death, was regarded by the court as a strong reason in support of this conclusion upholding the bequest made in the will to the wife before the divorce was granted. Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307.

So, the fact that testator survived the divorce some time, and died without making any alteration in his will, was one of the reasons which led the court to uphold the legacy in Sharpe's Estate, 15 W. N. C. 419.

IV. Effect of property settlement.

A settlement of property rights, made between the parties at the time of the divorce proceedings, is a circumstance which, in one instance at least, was deemed a strong element in favor of the implied revocation of the will.

Thus, the facts showed that a husband and wife while living together executed mutual wills identical in language, he devising all his prop erty to her and she devising all her property to him. She took possession of both wills, and preserved them until a decree of divorce was rendered in her favor, after which she destroyed her will. At the time of the divorce proceedings a property settlement was had by which the husband conveyed to the wife personalty and realty, in consideration of which she released him from all demands of every

tinues: 'It is clear, therefore, that all our rules in such cases are statutory ones, established by the legislature, by which the common law has been either repealed or altered or enforced by positive legislative sanction, and therefore not open to the doctrine of implied presumption.' In Heise v. Heise, 31 Pa. 246, is said: 'Yet, under the 13th section, that which was once a perfect will must ever remain such unless repealed, altered, or destroyed in some one of the modes designated in the act. Those modes are exclusive of all others.' So, also, Dixon's Appeal, 55 Pa. 424. There is no doubt that as to the beneficiary intended this will speaks from its date. 2 Jarman, Wills, p. 320; Gardner, Wills, p. 432; Anshutz v. Miller, 81 Pa. 212. This person was Mary Brown Jones. The words 'my wife,' prefixed to the name, do not imply any condition. Theobald, Wills, p. 210. Testator did not stipulate that she should continue to be his wife while he lived, and his widow upon his death, as a condition precedent. The name will prevail if there is a person fully answering to it, even though there be a description and no one answers to it. The mere fact that a gift is made to a named legatee in a certain character, as, for instance, to my wife A, does not avoid the legacy, if the legatee does not happen to fill the character." Theobald, Wills. p. 214. In Bullock v.

nature. In holding that the husband's will was revoked by Implication of law on account of the changed relations of the parties, the court bases its conclusion largely upon the ground that the property settlement raised the natural presumption that the husband intended to make no further provision for his wife. It is said: "To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which law is based. I do not think the common law is so unbending as to lead to this result. The natural presumption arising from these changed relations is the reasonable one, and the one which in law implies a revocation. The question is not to be controlled by a possible presumption, but by the reasonable presumption. The possibility, therefore, that the deceased might have desired that the remainder of his property should go to his divorced wife, cannot be considered in determining the question of an implied revocation in this case. Such disposition of his property would be unusual and contrary to common experience." Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54

N. W. 699.

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But in Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303, the subsequent granting of a divorce to the wife of a testator, and the settlement of her property rights, it is declared, will not work a revocation of the will; whether it would revoke the will as to the wife's legacy is expressly not determined, since the question was not at issue.

M. M. M.


Zilley, 1 N. J. Eq. 489, testator directed |
interest to be paid to Thomas Bullock and
Rebecca, his wife. They were divorced after
testator died. Held, the word 'wife' was
descriptive, designating the person, and
that Rebecca took under the will. Judge
Penrose, in Mellon's Estate, 28 W. N. C.
120: We may conjecture, but we cannot
be certain, that the inducing cause of the
provision for this claimant was that she was
testator's wife. We do know she is the in-
dividual in testator's mind when the will
was executed. The case of Charlton v. Mill-
er, 27 Ohio St. 298, 22 Am. Rep. 307, arose
under the provisions of testator's will be-
queathing to 'my intended wife, Elizabeth
Jennings, the sum of one thousand dollars,
to be paid to her by my executors one year
after my decease.' The execution of the will
was followed by the marriage of testator
with the legatee. Eight months thereafter
she deserted him. Five years later he ob-
tained a divorce on the ground of such de-
sertion, and he died five years after the di-
vorce. Held, in awarding the legacy to the
claimant, that, 'undoubtedly the contemplat-
ed marriage of the parties and a desire to
make a provision for the plaintiff as his
wife were prompting causes of the will, but
whether these were the only motives
we cannot tell.
To defeat the be-
quest we must then not only add to the
will conditions that are neither expressed
nor necessarily implied therein, but must
rebut the presumption against any intended
revocation of the will arising from the tes-
tator's acquiescence therein for nearly five
years after he was abandoned by his wife be-
fore he obtained a divorce.' In Sharpe's
Estate, 15 W. N. C. 419, testator created a
trust for his son, he to receive the interest
during life, and, in case of his death, for the
use and bnefit of his wife, Ada, and child,
or children, in the same manner until the
children att ined lawful age, when the cor-
pus was to be divided equally between the
wife, Ada, and children, and in case of no
surviving children the half part of the cor-
pus to the son's wife, Ada, the other half to
testator's surviving children. The will was
dated October 5, 1871, at which time the
testator was living with his son and the
son's wife, Ada. On October 19, 1872, in
the lifetime of the testator, upon the appli-
cation of the wife, they were divorced a vin-
culo, having no children. The son was re-
married, and died leaving a widow, Emma,
and child. The divorced wife, Ada, remar-
ried, and was living with her second hus-
band at the time of the adjudication. The
auditing judge, Hanna, P. J., awarded one "The contention that the divorce abso-
half the corpus to the legatee, Ada, hold- lutely severed the marriage relations is cor-
ing that the effect of the divorce was im- rect. If this claim were based on that rela-
material, referring to Burton v. Sturgeon, tion alone, it would be summarily dismissed.

34 L. T. N. S. 706; Fitzgerald v. Chapman,
33 L. T. N. S. 587; Bullmore v. Wynter, 48
L. T. N. S. 309; the court further stating
that, the testator survived the divorce mak-
ing no alteration in his will, that the di-
vorce did not convert the legacy into a
lapsed or void legacy. The court, by Judge
Penrose, affirmed the adjudication on an ad-
ditional and different theory, but it did not
disturb the conclusions stated by the audit-
ing judge. In the recent case of Brown v.
Ancient Order of U. W. 208 Pa. 101, 57 Atl.
176, the facts, as stated in the opinion, are:
John P. Brown, in October, 1877, became a
member of a subordinate lodge of the An-
cient Order of United Workmen, and had a
benefit certificate insuring his life in the
sum of $2,000, payable at his death to Mat-
tie Brown, his wife. In 1893 she obtained
an absolute divorce from him, and in the
same year he married Annie Z. Whaley. He
died December 22, 1901, leaving to survive
his widow, Annie Z. Brown, with one child;
three children of his first wife, Mattie
Brown, the beneficiary, who also survived,
and who had possession of the benefit cer-
tificate. No change was made in the bene-
ficiary. The decedent had contributed
toward the support of his divorced wife and
her children until his death. The judgment
in favor of the divorced wife, the beneficiary
named, was sustained. True, the facts are
somewhat different, and the adjudication of
the rights of the parties in passing upon the
charter and laws of this beneficial organiza-
tion are not similar to the questions raised
under this will; still this similarity does
exist: At the time she was made benefici-
ary she was his wife. She was within the
class recognized by the laws of the society.
At the time of his death she was not his
wife. The divorce severed their relations.
Brown could have changed his beneficiary.
That he did not had its weight in the deci-
sion of the court, Mr. Justice Mestrezat
saying: 'It is manifest
that John
P. Brown intended that his first wife should
continue to be the beneficiary
after they had been separated by the di-
vorce proceedings.
The divorce was
granted eight years before his death. Yet
he allowed these years to go by without a
surrender of the policy and a change of the
beneficiary, or without disclosing any desire
to make such change. . . Under the
circumstances it is evident that he never in
tended or desired to exercise his power of
appointment, and thereby deprive his first
wife of the benefit of the policy issued by
the defendant company.'

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