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Re ESTATE OF Thomas.Miffin JONES, Jr., | A PEEPAL by the. Fidelity Title & Trust.






Jones, 3d, from a decree of the Orphans' (211 Pa. 364.)

Court of Allegheny County dismissing ex

ceptions to the allowance of a claim to a 1. The procuring, by the legatee, of an

legacy under the will of Thomas Mimin absolute divorce subsequent to the execution of the will, does not cause the lapse of Jones, Jr., deceased. Affirmed. a legacy which testator creates for his "wife" The amount for distribution was in the by name.

neighborhood of $600,000. A claim to share 2. The granting of an absolute divorce in this under the will of the testator was

does not revoke by implication a legacy in
the will of the husband in favor of the wife. presented by his former wife.

Miller, J., the auditing judge, after set(Alitchell, Ch. J., dissents.)

ting out the stipulation as to the facts, con

tinued as follows: (April 10, 1905.)

“The question presented is new. Careful NOTE.Effect of divorce to revokc gift by will. hand, there is the possibility that he might have

labored under the supposition that the changed 1. Introductory, 940.

status of the legatee, resulting from the di II. When status mentioned in will controls. vorce, would of itself revoke his gift. When. a. In general, 940.

however, the legatee is specifically named, al: b. When legatee is mentioned by name, though also referred to as "husband" or "wife," 941.

the testator would hardly, in so important a III. Effect of lapse of time between divorce

matter, be justified in resting upon his belief and testutor's death, 942.

that his gift had been revoked by virtue or IV. Effect of property settlement, 913.

the divorce proceedings alone, when he could

so easily, if he had desired, bave made cbanges 1. Introductory.

which, without question, would set forth his From the few decisions upon this question in

intentions; and the application by the courts England and in this country, it is plain that

of the doctrine of implied revocation would, the courts, while taking into consideration all

under such circumstances,

to be un

RE Joxes and the similar earlier relevant circumstances tending to throw light warranted.

the upon testator's intention, refrain

decisions (II., b) show that the courts have rule from interfering with the right of a di

proceeded upon the above principle. vorced legatee to take under a will executed

But if the legatee is not mentioned by name prior to the granting of the divorce, unless

in the will, or even, if so mentioned, is fur. from the language of the will it is, in the court's

ther described as "widow," or otherwise re opinion. obviously testator's intention that the

ferred to in such a way that the status of gift shall not go to a legatee occupying the

marriage is, so far as can be judged from the changed relation resulting from divorce.

language of the will itself, intended to exist as or unless, from some other circumstance, the

a condition of the gift, then there is a greater court is irresistibly convinced that not to

possibility that the testator might have omitted decree an implied revocation in regard to the

to act, under the supposition that the didivorced legatee on account of the divorce

vorce of itself operated to revoke his gift: would be to allow something entirely contrary

and under such circumstances the courts have. to the testator's desire and intention. Under

in a few instances, applied the doctrine of im such circumstances only is the doctrine of implied revocation. plied revocation applied.

Thus, a will providing that, in case the wife This, it seems, is the proper course, for, if

of testatrix's son should survive bim, an annual a testator bad notice of divorce proceedings parment should be made to her during her affecting a legittee, and thereafter made no

widowhood, was construed to mean that the change in his will regarding him or her when

wife must occupy that status or condition at there was sufficient time and opportunity in

the time of the son's death so as to become


his widow, in which to do so, the presumption is strong that

to benefit unuer the his will expressed his wishes and intentions. will; and, therefore, that a decree of divorce

Bell v. and any interference by the courts, except operated to defeat her rights therein. under the circumstances above indicated, would Smalley, 45 N. J. Eq. 478, 18 Atl. 70. be an unwarranted and unjustitialıle extension

The bequest of an annuity to a wife by

name, of the doctrine of implied revocation.

**so long as

she should continue my

widow and unmarried," was held to be renII. When status mentioned in will controls. dered inoperative by a decree subsequently ob.

tained by her rendering the marriage null ab a. In general.

initio, on the ground that the status of widow..

hood was a condition of inception and a measure While there is strong ground for the pre. of the duration of the gift. Boddington F. sumption that if, after a divorce, there was Clairat, L. R. 25 Ch. Div. 035, following the opportunity and time in which testator lower court decision reported in L. R. 22 Ch. might have changed his will in regard to the Div. 597. 48 L. T. N. S. 110. divorced legatee. and omitted to do so, he did But the decisions right at this point are not care to make any change, on the other not harmonious. Thus, where a will provided



research shows no adjudication by the su- Mary Brown Jones, his wife; that the bepreme court of this state under the same quest so made to her was by reason of the conditions.

marriage relation. "Counsel for the guardian contend that, "The contention of counsel for the claimowing to the changed relations of the testa- ant is that, as to the identification of the tor after his will was made, and the decree beneficiary, the will speaks from its date of divorce was entered against him, abso- when the claimant was testator's wife; lutely severing and making null and void that the word 'wife' identifies the benethe marriage relationship, that the law im- ficiary, but does not imply any condition; plies a revocation of his will as to this be. that the divorce did not render the legacy quest; that the presumption is that he either void or lapsed; and that the lapse could not have intended the disposition of of time between the date of divorce and teshis property, made before his relations with tator's death-about twenty months—withhis then wife were changed, to still con- out changing the will is conclusive of his tinue after the relations by decree of abso- fixed intention to confer upon her the benelute divorce were severed; that the bequest fit given by the will. Implied revocation of of one third of his estate was not to Mary wills is an ingrafted heritage from the comBrown Jones as an individual only, but to mon law. When the conditions after the


for tbe payment of an income to a son, or, in ly a testator, was upheld, although she subsecase of his death his wife surviving bim, to quently obtained a decree declaring the mar. "the widow" of the son so long as she should riage null. This decision was upon the ground so remain, it was held that the words, "his that the gift of the legacy to her qua wife was wife" and "his widow" referred to the woman only a falsa demonstratio, the description of who occupied that relation at the time the will wife being merely to point out the individual. was made, notwithstanding they were subse. Boddington v. Clariat, L. R. 25 Ch. Div. 685. quently divorced and the son married another, following the lower court decision reported in who survived him. Davis v. Kerr, 3 App. Div.

L. R. 22 Ch. Div. 597. 322, 38 N. Y. Supp. 387.

So where, by a will, testator bequeathed an Somewhat similarly, under a will devising annuity to his son and son's wife jointly, and, property in trust to a daughter, and after her in case his son should die leaving "Eliza, bis death "in trust for any husband with whom wife, bim surviving," to lier as long as she she might intermarry, if he should survive her," should continue unmarried, the fact that the one who had married the daughter, obtained a son obtained absolute divorce from his divorce from her, and subsequently remarried. wife was held not to prevent her from rewas held entitled to take under the will, sinceceiving the appuity bequeathed in the will he fulfilled all the words of the bequest, there so long as she remained unmarried, since slie being no expression of any intention upon the was the person clearly described and designated part of the testator that he must be her hus. therein. Knox v. Wells, 48 L. T. N. S. 655, band at the date of death in order to take 31 Week. Rep. 559. Bullmore v. Wynter, L. R. 22 Ch. Div. 619. And where a will provided for the payment of 48 L. T. N. S. 309. This case, however, was an income to testator's nephew by name, and disapproved in Iitchins v. Morrieson, L. R. 40 "Rebeccal, his wife," a subsequent divorce will Ch. Div. 30, which held that, under a will be not operate so as to effect the wife's right to queathing a share of testator's residuary per. benefit under the will, since she is distinctly sonal estate in trust for his son and after his named therein, and the words "his wife'' are to death in trust to pay the income thereof for be taken as mere words of description. Bullife to any wife of the son, a wife from whom lock v. Zilley, 1 N. J. Lq. 489. the son had obtained an absolute divorce cannot And so, a bequest of the income of a certain claim a life interest, although the son died sum to be paid to the husband of the tes. without having remarried, since the life inter: tator's daughter if he should survive her, the est way to commence at the death of the son, will mentioning him by name, remains a valid and she was not at that moment in the status and subsistent trust although the husband and position of a wife.

and wife were divorced. The court says: "We

may conjecture, but we cannot be certain, that: b. When legatee is mentioned by name. the inducing cause of the provision for Thomas

Waller was that he was the husband of the If, however, the testator, in making the be. testator's daughter. The relationship, however, quest, mentions by name the husband or wife could not have been the sole motive, since the who is the legatee of the gift, besides referring gift is to the individual by name, and not to to him or her as “husband" or "wife," i1 him simply as husband.” Mellon's Estate, 28 seems justifiable, from the decisions as they W. N. C. 120. stand, together with RE JONES, to lay down as And similarly, where a testator bequeathed

rule that, under such circumstances, the money in trust for his son, and, in case of the fact of a subsequent divorce will not affect latter's death, that the trust be continued for the legatee's right to benefit under the will. the use and benefit of the son's wife, naming since the words “wife" or "husband" will her; and where, during the testator's lifetime, de regarded as falsa demonstratio, and not the son and wife were divorced upon the wife's words implying a condition that the legatee application,-such divorce does

not operate must occupy that relation in order to receive to prevent her from receiving the benefit of the gift. This conclusion has been reached the trust so provided for by will. Sharpe's in a number of decisions.

Estate, 15 W. N. C. 419. The fact that the Thus, a legacy willed to his wife by name, wife was mentioned in the will by name, and

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making of the will produce a change in the until the divorce, when she destroyed hers, testator's previous obligations and duties

was there may arise a reasonable presumption of known to him. In 1889, pending the dia change of intention in his mind. 4 Kent, vorce suit, she and he made a division of Com. 54. The doctrine is stated and adopt his property, he conveying to her certain ed in Young's Appeal, 39 Pa. 115, 80 Am. real estate, she releasing her interest in the Dec. 513, as follows: 'If the testator's cir- | remainder him. At the same time an cumstances be so altered that new moral agreement was executed by them in which testamentary duties have accrued to him he conveyed to her certain personal propsubsequently to the date of the will, such as erty. She released him from all demand of may be presumed to produce a change of every sort, agreeing to pay her own exintention, this will amount to an implied penses in the divorce proceedings, it being revocation.

This principle gives stated in the above-recited agreement that it the fundamental reason of all the positive and the deeds recited were intended as a rules of law we have on this subject.

property settlement between them. After The positive rules are given sometimes by his death she probated his will, and under statute and sometimes by judicial decision.' it claimed the husband's estate. Her claim But the fact in this case involv an ante. was denied, the court saying, inter alia: nuptial settlement and the subsequent birth 'The natural presumption arising from these of issue after date of the will. The revoca- changed relations is the reasonable one, and tion of the will under the facts does not ap- the one which in law implies a revocation. ply here. Lansing v. Haynes, 95 Mich. 16,

To hold the will unrevoked under 35 Am. St. Rep. 545, 54 N. W..699, is the these circumstances would be repugnant to leading case apparently sustaining the that common sense and reason upon which guardian's contention, and is worthy of ex- law is based.' The foregoing is one of the tended notice. The parties were married in few adjudicated cases involving the effects 1864. The wife obtained an absolute de- of a divorce upon the precise point at iscree of divorce in 1889. The husband died sue; but it differs from this, that there had in 1891. They executed mutual ills been a settlement of the property rights of 1881, identical in language, each devising the parties; the court, after commenting on all their property to the other. She, by the effect of divorce and change of relation, agreement, became custodian of both wills saying: 'It is not, in my judgment, the was the only person answering to that descrip-, court decision reported in L. R. 22 Ch. Div. tion at the date of the will, was one of the rea.

597. sons which appealed to the court in coming to the above conclusion. It is said: “The III. Effect of lapse of time betrocon ditorce person intended by testator was his daughter

and testator's death. in-law, Ada, and add the word 'wife' was merely to still more particularly identify The fact that, after the granting of the diher. It was to designate the person, and not vorce with the knowledge of the testator, he to imply a condition, viz., that she must be had ample time before his death to change his the wife of the son at the time the bequest to will in regard to the legatee affected by the her took effect. She was his wife at the date divorce, is a circumstance which is justly reof the gift to her, and that is all that is neces


garded as of great weight in support of the sary."

conclusion that he desired the provisions carSo, in Charlton v. Miller, 27 Ohio St. 298, ried out which were embodied in his will at 22 Am. Rep. 307, on the same day, but prior the time of his death. to their marriage, the prospective husband

A busband bequeathed to his wife a specimade a will giving to his intended wife by

fied sum payable annually in lieu of dower. name a certain sum. She subsequently aban

The following year he obtained a divorce from doned him, whereupon he obtained a divorce.

her, and died five years thereafter. In boldThe bequest to the wife was upheld, partly ing that the gift to the wife was not revoked upon the ground that it was absolute and un

by the divorce granted, the court declared that conditional in its terms, and was not condi

coverture could not be said to have been the tioned upon her survivorship as his widow. But if the legatee is referred to as "widow,"

sole motive or inducement to the will, since. although also by name, that seems to be re

after that was taken away, it still remained

true that the legatee had been the testator's garded as a designation by the testator of the status which

wife, and was the mother of his children ; and, the legatee must occupy in order to receive the gift. Thus, in one case

adding to this the further facts which existed where the bequest was to the wife by name

in the case, that the testator was possessed of “so long as she shall continue my widow and

a large estate, the provision for the wife being unmarried," a decree obtained by her

'omparatively a mere pittance, and that he dering the marriage void ab initio was held to

lired nearly tive years after the divorce, making prevent her from receiving the gift on the

no change in his will, the conclusion was de ground that the status of widowhood was a clared well-nigh irresistible that he did not condition of the inception and measure of the intend to deprive his former wife of the pro duration of the gift. Boddington v. Clariat, vision he had made for her. Card v. AlesanL. R. 25 Ch. Div. 685, following the lower der, 48 Conn. 492, 40 Am. Rep. 187.


natural presumption that, after the testator | tinues: 'It is clear, therefore, that all our had settled with her, had conveyed to her rules in such cases are statutory ones, estaba good share of his property, and they by lished by the legislature, by which the comagreement had terminated all their prop- mon law has been either repealed or altered erty as well as their marital relations, the or enforced by positive legislative sanction, will executed nearly ten years before should and therefore not open to the doctrine of imremain in force and operate upon his death plied presumption.' In Heise v. Heise, 31 as a conveyance of the remainder of his Pa. 246, is said: 'Yet, under the 13th secproperty to her to the exclusion of his tion, that which was once a perfect will heirs.'

must ever remain such unless repealed, al"Our statutes provide for the revocation tered, or destroyed in some one of the modes of wills—as to real estate by some other designated in the act. Those modes are exwill or codicil in writing, or other writing clusive of all others.' So, also, Dixon's Apdeclaring the same, by burning, canceling, peal, 55 Pa. 424. There is no doubt that as obliterating, or destroying the same; as to to the beneficiary intended this will speaks personal estate in the sane manner, except, from its date. 2 Jarman, Wills, p. 320; in addition, by a nuncupative will, made Gardner, Wills, p. 432; Anshutz v. Miller, under the same circumstances, committed to 81 Pa. 212. This person was Mary Brown writing in the lifetime of the testator, so Jones. The words 'my wife,' prefixed to the read to and allowed by him; and by the name, do not imply any condition. Theo marriage, subsequent to the making of a bald, Wills, p. 210. Testator did not stipuwill, of a man leaving a widow and child or late that she should continue to be his widow or child or children; and by the sub- wife while he lived, and his widow upon his sequent marriage of a single woman who death, as a condition precedent. The name had made her will. The statutes are silent will prevail if there is a person fully answeras to the revocation of wills in any other ing to it, even though there be a description manner. The language that 'no will shall and no one answers to it. "The mere fact be revoked, except as therein provided, in that a gift is made to a named legatee in a dicates a strong implication that any other certain character, as, for instance, to my revocation is prohibited. In Walker v. wife A, does not avoid the legacy, if the legHall, 34 Pa. 483, the court, after declaring atee does not happen to fill the character.” the well-recognized rules of revocation, con- Theobald, Wills. p. 214. In Bullock v.

The fact that the will might easily have been nature. In holding that the husband's will expressly revoked, and that, on the contrary, was revoked by implication of law on account the testator made no change in it for nearly five of the changed relations of the parties, the years after he was abandoned by his wife be- court bases its conclusion largely upon the fore he obtained a divorce from her, and more ground that the property settlement raised the than four years after the divorce before bis natural presumption that the husband intenddeath, was regarded by the court as a strong ed to make no further provision for his wife. reason in support of this conclusion upholding It is said: "To hold the will unrevoked under the bequest made in the will to the wife before these circumstances would be repugnant to the divorce was granted. Charlton v. Miller, that common sense and reason upon which law 27 Ohio St. 298, 22 Am. Rep. 307.

is based. I do not think the common law is So, the fact that testator survived the di

so unbending as to lead to this result. vorce some time, and died without making any

The natural presumption arising from these alteration in his will, was one of the reasons

changed relations is the reasonable one, and the which led the court to uphold the legacy in

one which in law implies a revocation. The Sharpe's Estate, 15 W. N. C. 419.

question is not to be controlled by a possible

presumption, but by the reasonable presumption. IV. Effect of property settlement.

The possibility, therefore, that the deceased A settlement of property rights, made be

might have desired that the remainder of his tween the parties at the time of the divorce property should go to his divorced wife, cannot proceedings, is a circumstance which, in one

be considered in determining the question of instance at least, was deemed a strong element

an implied revocation in this case. Such disin favor of the implied revocation of the will. position of his property would be unusual and

Thus, the facts showed that a husband and contrary to common experience.” Lansing v. wife while living together executed mutual wills Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 identical In language, he devising all his prop. NW. 699. erty to ber und she devising all her property

But in Baacke v. Baacke, 50 Neb. 18, 69 to him. She took possession of both wills, and

N. W. 303, the subsequent granting of a dipreserved them until a decree of divorce was

vorce to the wife of a testator, and the settlerendered in her favor, after which she de- ment of her property rights, it is declared, will stroyed her will. At the time of the divorce not work a revocation of the will; whether it proceedings a property settlement was had by would revoke the will as to the wife's legacy which the husband conveyed to wife per- is expressly not determined, since the question sonalty and realty, in consideration of which was not at issue. she released him from all demands of every

M. M. M.



Zilley, 1 N. J. Eq. 489, testator directed | 34 L. T. N. S. 706; Fitzgerald v. Chapman, interest to be paid to Thomas Bullock and 33 L. T. N. S. 587; Bullmore v. Wynter, 48 Rebecca, his wife. They were divorced after L. T. N. S. 309; the court further stating testator died. Held, the word 'wife' was that, the testator survived the divorce makdescriptive, designating the person, and ing no alteration in his will, that the dithat Rebecca took under the will. Judge vorce did not convert the legacy into a Penrose, in Mellon's Estate, 28 W. N. C. lapsed or void legacy. The court, by Judge 120: We may conjecture, but we cannot Penrose, affirmed the adjudication on an ad. be certain, that the inducing cause of the ditional and different theory, but it did not provision for this claimant was that she was disturb the conclusions stated by the audittestator's wife. We do know she is the in ing judge. In the recent case of Brown v. dividual in testator's mind when the will Ancient Order of U. W. 208 Pa. 101, 57 Atl. was executed. The case of Charlton v. Alill- 176, the facts, as stated in the opinion, are: er, 27 Ohio St. 298, 22 Am. Rep. 307, arose John P. Brown, in October, 1877, became a under the provisions of testator's will be member of a subordinate lodge of the Anqueathing to ‘my intended wife, Elizabeth cient Order of United Workmen, and had a Jennings, the sum of one thousand dollars, benefit certificate insuring his life in the to be paid to her by my executors one year sum of $2,000, payable at his death to Matafter my decease. The execution of the will tie Brown, his wife. In 1893 she obtained was followed by the marriage of testator an absolute divorce from him, and in the with the legatee. Eight months thereafter same year he married Annie 2. Whaley. He she deserted him. Five years later he ob- died December 22, 1901, leaving to survive tained a divorce on the ground of such de his widow, Annie Z. Brown, with one child; sertion, and he died five years after the di- three children of his first wife, Mattie

Held, in awarding the legacy to the Brown, the beneficiary, who also survived, claimant, that, 'undoubtedly the contemplat- and who had possession of the benefit cered marriage of the parties and a desire to tificate. No change was made in the benemake a provision for the plaintiff as his ficiary. The decedent had contributed wife were prompting causes of the will, but toward the support of his divorced wife and whether these were the only motives

her children until his death. The judgment we cannot tell.

To defeat the be in favor of the divorced wife, the beneficiary quest we must then not only add to the named, was sustained. True, the facts are will conditions that are neither expressed somewhat different, and the adjudication of nor necessarily implied therein, but must the rights of the parties in passing upon the rebut the presumption against any intended charter and laws of this beneficial organizarevocation of the will arising from tire testion are not similar to the questions raised tator's acquiescence therein for nearly five under this will; still this similarity does years after he was abandoned by his wife be exist: At the time she was made beneficifore he obtained a divorce.' In Sharpe's ary she was his wife. She was within the Estate, 15 W. N. C. 419, testator created a class recognized by the laws of the society. trust for his son, he to receive the interest At the time of his death she was not his during life, and, in case of his death, for the wife. The divorce severed their relations. use and bnefit of his wife, Ada, and child, Brown could have changed his beneficiary. or children, in the same manner until the That he did not had its weight in the decichildren att. ined lawful age, when the cor- sion of the court, Mr. Justice Mestrezat pus was to be divided equally between the saying: 'It is manifest ... that John wife, Ada, and children, and in case of no P. Brown intended that his first wife should surviving children the half part of the cor- continue to be the beneficiary pus to the son's wife, Ada, the other half to after they had been separated by the di. testator's surviving children. The will was vorce proceedings.

The divorce was dated October 5, 1871, at which time the granted eight years before his death. Yet testator was living with his son and the he allowed these years to go by without a son's wife, Ada. On October 19, 1872, in surrender of the policy and a change of the the lifetime of the testator, upon the appli beneficiary, or without disclosing any desire cation of the wife, they were divorced a vin- to make such change.

Under the culo, having no children. The son was re- circumstances it is evident that he never inmarried, and died leaving a widow, Emma, tended or desired to exercise his power of and child. The divorced wife, Ada, remar- appointinent, and thereby deprive his first ried, and was living with her second hus- wife of the benefit of the policy issued by band at the time of the adjudication. The the defendant company.' auditing judge, Hanna, P. J., awarded one "The contention that the divorce absohalf the corpus to the legatee, Ada, hold- lutely severed the marriage relations is coring that the effect of the divorce was im- rect. If this claim were based on that relamaterial, referring to Burton v. Sturgeon, tion alone, it would be summarily dismissed.

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