ory aside from such statutes it would be very difficult to say.' To hold, under the facts in this case, that the divorce revoked this bequest, would not be in accordance with statutory regulation, and would be extending the doctrine of an implied revocation beyond any authoritative adjudication, and would be contrary to the express and implied intention of the testator." Exceptions to this ruling were dismissed by the Orphans' Court, Hawkins, P. J., filing the following dissenting opinion: But it arises from an entirely different | revoke on the ground of an alteration in cause. Its basis is the deliberate, mature circumstances, and what is left of that theact of the testator, made when the end of the marriage relation had begun; an act that he continued to ratify during the months that the divorce proceedings were pending, in every step of which he had notice, which act he continually reaffirmed during the long period after the divorce, ending only with his death. It does not follow that, because the divorce made these parties as strangers to each other, so far as their marital rights were concerned, that therefore the testator's deliberate act in making his devise, which did not necessarily depend on the marriage relation, a void or lapsed devise. The facts here do not bring this case within the rule that the law works a revocation where the changed relations raise a reasonable presumption of a change of intention in the testator's mind. To strike down his expressed intention, and substitute therefor a presumption of his change of intention, would lead to a result unwarranted in principle or precedent. Why the testator did not alter his will cannot be known. He had almost two years in which to change it. Although divorced, the devisee was not a stranger to him or to his blood. She was the mother of his only child. Both remained unmarried to his death. Her subsequent marriage did not, so far as the record shows, enter into any consideration, and is immaterial. There was no change or alteration in his estate when the will took effect. The principal object of his bounty, his only son, who takes the remainder (by far the greater portion) of his estate, still continued as the chief object of care. His will, made after the separation. taking effect at his death, is presumptive legal evidence that he was satisfied, and so intended the disposition of his property. He could, after the divorce, have made a new will with the same devise to the same person or any other devise to any other person; that he did not do so is persuasive that he intended the devise to Mary Brown Jones, his former wife, the mother of the child born to them both, to remain in effect. In Schouler on Wills, § 427, it is said: 'In short, revocation of a particular will by mere inference of law or presumption is limited to a very few instances in our modern practice; while, on the other hand. changes in the condition of the testator's affairs or through the mortal chances to which both he and his beneficiaries are exposed may work out a very different settlement and distribution of his estate after his death from what the will purported to arrange. Modern legislation itself repudiates in England and many of our states the whole theory of a presumed intention to "If Mr. Jones had died intestate, it must be conceded that this claimant would have had no standing here. Her right to claim in distribution would have depended on the continuance of the marital relation, and that had been terminated by her act as completely as though she had died before Mr. Jones. The law gave her the option of qualified or absolute divorce, and, having chosen the latter, she would voluntarily have relinquished her whole interest in his estate. The statute of divorce prescribes that, upon the dissolution of marriage, ‘all and every the duties, rights, and claims accruing to either of the parties at any time theretofore in pursuance of said marriage shall cease and determine,' and to this extent is part of the law of distribution. And why not apply this broad principle to wills? Because, says counsel, there can be no implied revocation without statutory prescription; and divorce is not prescribed. But it is fully established that change of circumstances raises a presumption of change of intention, and works a revocation of a will; and this presumption is said to be so strong that it may not be rebutted by parol evidence, on the ground that this would be productive of the evils which were intended to be averted by the statute of fraud. Marshall v. Marshall, 11 Pa. 430. There are subordinate reasons everywhere, said the court in Young's Appeal, 39 Pa. 115, 80 Am. Dec. 513, varying the rule according to the laws of descent. The positive rules are given sometimes by statute and sometimes by judicial decision; and the most positive of them are sometimes changed merely incidentally by a change in the laws of descent. For the law does not do or require vain things. It has accordingly been held again and again that testator's sale of a thing specifically given is an implied revocation pro tanto, notwithstanding the absence of statutory prescription. 1 Wms. Exrs. 242. So, it was held in Carey's Appeal, 75 Pa. 201, that revocation may be implied from change of domicil. No one can doubt that refusal to accept a legacy will work revocation pro tanto. Re Bryce, 194 Pa. 135, 44 Atl. 1076. And so in Lee's Estate, 207 Pa, 218, 56 Atl. 425, it was held | offering. But it would be asking too much that a decree of divorce implied the revoca- of human nature to expect the husband to tion of a coverture trust upon the ground make such a gift in anticipation of his wife's that 'the law has severed the matrimonial application for divorce and remarriage. “The bond as effectually as death could have natural presumption arising from these done.' If this claimant had died before Mr. changed relations,' said the court in LanJones, there can be no doubt that the gift sing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. must have failed, for she would not have 545, 54 N. W. 699, 'is the reasonable one. been within the statute of lapse; and di- and the one which in law implies a revocavorce is the equivalent of death. If divorce tion. The question is not to be controlled be the equivalent of death in such will by a possible presumption, but by the rea(Flory v. Becker, 2 Pa. St. 470, 45 Am. Dec. sonable presumption. The possibility, there610), it must be so in every will in which fore, that the deceased might have desired marital rights are involved. Implied revo- that the remainder of his property should cations, said Chancellor Kent (4 Com. 521), go to his divorced wife, cannot be considered 'are founded upon the reasonable presump- in determining the question of an implied tion of an alteration of the testator's mind revocation in this case. Such disposition of arising from circumstances since the making his property would be unusual, and contrary of the will, producing a change in his previ- to common experience,' and the grounds of ous obligations and duties. There divorce may be such as to make her claim is not, perhaps, any code of civilized juris- 'repugnant to that common sense and reaprudence in which this doctrine of implied son upon which the law is based.' revocation does not exist, and apply when the occurrence of new social relations and moral duties raises a necessary presumption | Jones,' and a gift to 'Mary Brown Jones,' of a change of intention in the testator.' It without more. Irrespective of technical is immaterial, said the court in Young's Ap- rules, no one would hesitate to infer that the peal, 39 Pa. 115, 80 Am. Dec. 513, whether first was descriptive of the marital relation, this principle of the common law 'was de- and imported on its face that the gift was rived from the Roman law or from our hu- made because of that relation; and that the man instincts of justice; certainly it is now latter was descriptive of the individual, and a legitimate element of our common law, imported an absolute gift. The difference of and we would not have received it but for description would imply difference in purthose instincts. The Romans received it be- pose. So there is a material difference be fore us because they were before us, and between a gift to a testator's wife and a gift cause they, too, were human.' It seems to the wife of another in this: That the forclear, therefore, that there may be implied mer necessarily implies recognition of a revocation of wills outside of statutory pre-marital duty, and is therefore dependent on scription. "The pivotal question, then, is whether or not the change of conditions since the making of this will produced such a change in testator's previous moral obligations and duties as raises a reasonable presumption of alteration of his mind, and implies revocation of the bequest which he had made to his wife? If the gift was made because of the existence of the marital relation, divorce would certainly take away the reason for it; and without the reason which inspired, the legatee could have no equity to claim it. It is immaterial whether her husband made a will or not; for, her application having been a voluntary and absolute renunciation of 'all and every the duties, rights, and claims accruing in pur suance of the marriage,' she took the risk, and should abide the consequence. It is safe to assume that the gift would not have been made if the beneficiary had not stood in the relation of wife. It may be that Mr. Jones's misconduct was so gross as to justify his wife leaving him, and that under the spur of remorse he made the will as a peace "There is obviously an essential difference between a gift to 'my wife, Mary Brown its continued existence; while the latter implies no more than a purpose of identification of the object of bounty. The question in this case is not who was intended to take, for Mr. Jones cannot be supposed to have had in contemplation a future wife,-but the character in which this legatee was intended to take, whether because of her marital relation to testator or simply as an individual. If given because of the marital relation, as the description imports, she can take it in no other character than as widow. It is suggested that to produce this effect an express condition of continuance of the marriage relation must have been attached to the gift; but there is no apparent reason why an implied condition should not be just as effective; and the form of this gift implies continuance. Not only does the description of the legatee import on its face a conditional gift, but the quantity of the gift implies that testator had in view the intestate law, and therefore marital right, as the reason, There is a well-settled principle that a widow will be presumed to take under the intestate law, rather than under her husband's will, where her interest is the | then living, and that the court might well same in either event. Davison's Appeal, 95 have come to a different conclusion. In Pa. 394. The statute furnishes the gen- Garratt v. Niblock, 1 Russ. & M. 629, it was eral rule of distribution, and the will is held that by the expression 'my beloved simply declarative, and therefore no elec- wife' testator must have meant a particution is necessary; and, conversely, the tes- lar wife; and so in Re Bryan, 2 Sim. N. S. tator must be presumed to have given in the | 103, the language of the gift was held to same right in which this interest is taken point out a particular husband. Re Lyne, by his widow, and therefore because of re- L. R. 8 Eq. 65. On the other hand, where lationship to his widow as such. While it there was a devise to testator's nephew for is said that this estate consisted in part of life, with remainder to the nephew's wife for realty, the natural inference is that the gift | life, with remainder to children of his nephof 'one third' of the estate, which consisted ew by said wife, it was held to extend to the largely of personalty, was suggested by the nephew's second wife. Peppin v. Bickford, 3 intestate law, and that consequently Mr. Ves. Jr. 570. In a somewhat similar case Jones had in view his wife's marital right Vice Chancellor Malins reached the same under that law as distinguished from her in- conclusion. Attention is called to the fact dividual right. It was also upon this prin- that Sir George Jessel, master of the rolls ciple of implied conformity to the intestate in a subsequent case disapproved of this delaw that bequests to a mother and her chil- cision; but he was noted for his disregard of dren gave the mother but a life estate precedent, and his dictum might not stand (Hague v. Hague, 161 Pa. 643, 41 Am. St. against the ruling of a court of superior Rep. 900, 29 Atl. 261); and a legacy by a jurisdiction. Two cases were also cited on father to a child is understood as a portion, behalf of claimant from supreme court rebecause it is a provision by a parent for his ports in this country against implied revochild (Miner v. Atherton, 35 Pa. 528). And cation by divorce; but an examination of it is upon a similar principle that a legacy these cases will show that they are not apis considered to have been given in satisfac- plicable here. In the first (Bullock v. Ziition of a debt, rather than as an independ- ley, 1 N. J. Eq. 489) the bequest was not ent gift, where there is identity in amount. to the testator's wife, but to his son, An intent to give because of the marital re- 'Thomas Bullock, and Rebecca, his wife,' lation is therefore apparent. and the decision was rested upon four grounds suggested by the peculiar language of the will as showing testamentary intent to make an absolute gift. No authorities were cited. In the other case (Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307) the bequest was made in contemplation of marriage, and the court very properly held that it did not depend on marriage, and could not, therefore, be lost by divorce. Even those cases which deny implied revocation by divorce concede that a slight indication of a different intent will prevail, and are therefore distinguishable from the present case on this ground. On the other hand, the case of Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699, cited for the estate, is a strong authority in support of the doctrine of implied revocation by divorce. Mr. Lansing and wife executed mutual wills of their respective estates, and were afterward divorced. Pending the suit in divorce they entered into an agreement of division and release of their property, but no reference was made therein to their wills; and on Mr. Lansing's death an issue was raised of implied revocation on Mrs. Lansing's presentation of the will. In a very able opinion by Mr. Justice Grant the court held that, because of the absence of any reference to the will, the agreement did not amount to an express revocation under their statute, but that an implied revocation "What Mr. Jones did or failed to do after the divorce was granted has nothing to do with the question involved here. If the divorce worked a revocation, it could not be republished in any manner other than that prescribed by the statute of wills. Many wills have been revoked pro tanto by implication-as, for example, in case of ademption-without a suggestion that testator was required to make it effectual by a written modification of his will. The case of Brown v. Ancient Order of U. W. 208 Pa. 101, 57 Atl. 176, is clearly distinguishable from this in that it was based upon a contract whose terms made change of beneficiary dependent on the act of the assured. | Why Mr. Jones did not do what he was not required to do, the evidence fails to show. He may not have been in a condition after the divorce to have taken action, or he may have been advised or thought it unnecessary; but, in any event, he owed no duty to this claimant. It may be conceded that there are English cases inconsistent with this view, some of them arising on marriage articles, and some on wills; but the cases even there were not harmonious. Vice Chancellor Malins said of Boreham v. Bignall, 8 Hare, 131, the leading case, that the court evidently thought, from the peculiar language used, that there was an intention to benefit the particular wife of his nephew, arose from the divorce. By the decree of divorce in this case,' said the court, 'the parties became strangers to each other, and neither owed to the other any obligation or duty thereafter. There was therefore a complete change in these relations;' and the case fell within the principle laid down by Chancellor Kent, as above quoted. No Pennsylvania supreme court decision has been found in conflict with this view. The case of Brown v. Ancient Order of U. W. 208 Pa. 101, 57 Atl. 176, cited on behalf of claimant, is, as already suggested, distinguishable from this by the fact that the right of the beneficiary had been fixed by contract, subject to a new designation on the part of the assured, which was never made, whereas revocation here arose by implication of law, and there was no republication as prescribed by statute. The case may, therefore, to use the language of the court in Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699, be decided on the 'common sense and reason upon which the law is based.' Dec. 610; Lee's Estate, 207 Pa. 218, 56 Atl. 425; Miltimore v. Miltimore, 40 Pa. 156. The language of the will itself, and the circumstances surrounding the testator when the will was made, show that the testator intended this gift to his wife in her character or relationship as such, and not otherwise. A legatee must answer the description and character contained in the will. 2 Wms. Exrs. *1089. The will speaks from the death of the testator. Act June 4, 1879, P. L. 88, § 1; 2 Wms. Exrs. *1089; Anshutz v. Miller, 81 Pa. 212; Bell v. Smalley, 45 N. J. Eq. 478, 18 Atl. 70; Hitchins v. Morrieson, L. R. 40 Ch. Div. 30; Seibert's Appeal, 18 W. N. C. 276. 6 Atl. 105. The bequest to Mary Brown Jones has been revoked by implication by reason of the changed relations produced by her obtaining a divorce from the testator since the making of the will. Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699. Messrs. Seymour, Patterson, & Siebeneck, for appellee: Irish v. Smith, 8 Serg. & R. 580, 11 Am. Dec. 648; Brown v. Ancient Order of U. W. 208 Pa. 101, 57 Atl.176; Padelford's Estate, 190 Pa. 48, 42 Atl. 381; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307. "None of the judges who deny implied revocation by divorce attempts to reconcile his position with the common-law doctrine of implied revocation of will from change of After final separation, a husband made circumstances, and logically they are irrec-bequest to "my wife Mary." Afterward oncilable, for there can be no change of cir- they were divorced. He survived the decree cumstance more radical than that produced by twenty months, but made no change in by divorce. If ademption will imply revo- the will. These facts indicate that he incation, much more should this. A husband, tended the will to stand. as such, may show the greatest generosity in testamentary disposition; but it is not in human nature to give to her who has held his domestic faults up to public gaze as a means of dissolving marriage. Who would for a moment believe that, if Mr. Jones were living to-day, he would give Mrs. Speer 'one third' of his estate? To ask is to answer the question. Independance, of the personal question, consideration for his son's interest would have a deterrent effect. The divorce caused such change in circumstances that his son became presumptively the sole object of testamentary obligation. And, on the other hand, it is impossible to understand how, in view of Mrs. Speer's renunciation, she can consistently claim what, without the existence of the marital relation, would never have been given. She has no equity to recognition. The word "wife," standing before the word "Mary," is intended to identify her from other "Mary Joneses," and not to imply a condition that she must remain his wife. Williams v. Neff, 52 Pa. 336; Hardy v. Smith, 136 Mass. 328; Anshutz v. Miller, 81 Pa. 212; Morse v. Mason, 11 Allen, 36: Schult v. Moll, 132 N. Y. 122, 43 N. Y. S. R. 484, 30 N. E. 377; Bullock v. Zilley, 1 N. J. Eq. 489; Johnson v. Johnson, 1 Tenn. Ch. 621. The term "wife" relates to the wife at the date of the will. Garratt v. Niblack, 1 Russ. & M. 629; 2 Jarman, Wills, 1876 ed. *380; Re Bryan, 2 "For these reasons I would disallow this Sim. N. S. 103; Franks v. Brooker, 27 claim." Messrs. Watson & Freeman, George C. Wilson, and William D. Evans, for appellant: There is no difference in principle whether the marriage is destroyed by death or by the sentence of the law. Flory v. Becker, 2 Pa. St. 470, 45 Am. Beav. 635; Bullock v. Bennett, 7 De. G. M. The divorce did not affect the gift. The statute limits such revocation to either marriage or birth of issue pro tanto, and excludes any other change. Coates v. Hughes, 3 Binney, 498; Clingan v. Mitchel tree, 31 Pa. 33; Heise v. Heise, 31 Pa. 246; Walker v. Hall, 34 Pa. 483; Dixon's Appeal, 55 Pa. 424; McCulloch's Appeal, 113 Pa. 247, 6 Atl. 253. The word "wife" merely identifies the beneficiary with particularity, and does not imply any condition. Charlton v. Miller, 27 Ohio St. 298, 22 | inoperative. The donee survived the testaAm. Rep. 307; Brown v. Ancient Order of tor, and is alive, and has both capacity and U. W. 208 Pa. 101, 57 Atl. 176; Fitzgerald willingness to take under the will. But it v. Chapman, 33 L. T. N. S. 587; Babcock v. is suggested in the argument that, while not Smith, 22 Pick. 61; Bullmore v. Wynter, 48 physically dead, the donee, by her own act L. T. N. S. 309; Mellon's Estate, 28 W. N. in obtaining the decree of divorce, ended the C. 120; Sharpe's Estate, 15 W. N. C. 419; marital relation as absolutely as death Card v. Alexander, 48 Conn. 492, 40 Am. would have done. This consequence did folRep. 187; Boddington v. Clairat, 48 L .T. low the divorce, in so far as the duties, N. S. 110; McKnight v. Read, 1 Whart. rights, and claims accruing to her by rea222; Dilley v. Matthews, 8 L. T. N. S. son of the marriage are concerned. With 762; Steele v. Thompson, 14 Serg. & R. SS. respect to the determination of these rights. To raise implied revocation, new moral and these alone, is divorce the equivalent of duties must accrue after date of will,- death. The decree in divorce took away only such being marriage and birth of issue. only what the law gave to her when the marYoung's Appeal, 39 Pa. 115, 80 Am. Dec. riage was contracted. This was the right 513; Marston v. Roe, 8 Ad. & El. 14; 4 to support, and to dower in his estate if she Kent, Com. 521. survived him. After the entry of the decree the testator was no longer bound to provide for her, and she had no further claim upon his estate. What the law gave, it took away; nothing more. The beneficiary is not here claiming anything which accrued to her in pursuance of her marriage. She is here only as a legatee, and is asking for that only which the testator gave to her of his free grace, and as a matter of bounty. That which he gave to her in his will was his own to give or to withhold, as he saw fit. A bequest needs no consideration to support it. As a legatee she stands upon the same footing as any other individual, and her relation to the testator has nothing to do with the ease, unless he chose to make it an element in the bestowal of the gift. Did he do so? The provision in the will is as follows: "I direct that my funeral expenses and all debts be promptly paid, and that my estate be divided as follows: One third to my wife, Mary Brown Jones, and the balance to my son, Thomas Mifflin Jones." The will was dated April 24, 1899, and Mary Brown Jones was then the wife of the testator. On February 6, 1900, the said Mary Brown Jones began proceedings in divorce, and the decree was granted to her on September 19, 1900. Thomas M. Jones, Jr., the testator, lived about one year and eight months after the divorce was granted, and died on May 17, 1902. Mary Brown Jones did not remarry during the lifetime of the said Thomas M. Jones, Jr., but she did marry about six months after his death. It will be noticed that the gift was to "my wife, Mary Brown Jones," without any conditions or limitations. The testator gives the one third of his estate to a particular person, naming her, and further identifying her by the statement that she is his wife. That is in substance what he says. He make no stipulation that she shall remain his wife, or be such at the time of his death. We are clear that such use of the word "wife" as is here made, is de Theobald, Wills, 1881, 2d ed. p. 210; Standen v. Standen, 2 Ves. Jr. 589; Re Blackman, 16 Beav. 377; Doe ex dem. Gains v. Rouse, 5 C. B. 422; Re Ingle, L. R. 11 Eq. 578; Re Petts, 27 Beav. 576; Giles v. Giles, 1 Keen, 685; Boreham v. Bignall, 8 Hare, 131; Re Burrow, 10 L. T. N. S. 184: Re Cahn, 3 Redf. 31; Rishton v. Cobb, 9 Sim. 615; Morse v. Mason, 11 Allen, 36: Hardy v. Smith, 136 Mass. 328; Johnson v. Johnson, 1 Tenn. Ch. 621; Schult v. Moll, 132 N. Y. 122, 43 N. Y. S. R. 484, 30 N. E. 377; Bullock v. Zilley, 1 N. J. Eq. 489; Williams v. Neff, 52 Pa. 326; Bain v Lescher, 11 Sim. 397. Potter, J., delivered the opinion of the court: The questions presented by this appeal, stated by the appellant, are: (1) Does a legacy in these words: "one third to my wife, Mary Brown Jones," lapse when the wife, subsequent to the date of the will, at her own instance, obtains a divorce a vinculo matrimonii? (2) Is a bequest "to my wife, Mary Brown Jones," revoked by implication by reason of absolute divorce? We take up these questions in order. What is there in the facts of this case to support the claim that the legacy has lapsed? The person named as legatee did not die in the lifetime of the testator, nor did any other event occur in the lifetime of the testator, which, under the language of the will, would render the testamentary gift |