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But it arises from an entirely different revoke on the ground of an alteration in
Its basis is the deliberate, mature circumstances, and what is left of that theact of the testator, made when the end of ory aside from such statutes it would be the marriage relation had begun; an act very difficult to say.' To hold, under the that he continued to ratify during the facts in this case, that the divorce revoked months that the divorce proceedings were this bequest, would not be in accordance pending, in every step of which he had no with statutory regulation, and would be extice, which act he continually reaffirmed tending the doctrine of an implied revocaduring the long period after the divorce, tion beyond any authoritative adjudication, ending only with his death. It does not fol. and would be contrary to the express and low that, because the divorce made these implied intention of the testator." parties as strangers to each other, so far as Exceptions to this ruling were dismissed their marital rights were concerned, that by the Orphans' Court, Hawkins, P. J., filtherefore the testator's deliberate act in ing the following dissenting opinion: making his devise, which did not necessa “If Mr. Jones had died intestate, it must rily depend on the marriage relation, a void be conceded that this claimant would have or lapsed devise. The facts here do not had no standing here. Her right to claim bring this case within the rule that the law in distribution would have depended on the works a revocation where the changed rela continuance of the marital relation, and that tions raise a reasonable presumption of a had been terminated by her act as completechange of intention in the testator's mind. ly as though she had died before Mr. Jones. To strike down his expressed intention, and The law gave her the option of qualified or substitute therefor a presumption of his absolute divorce, and, having chosen the latchange of intention, would lead to a result ter, she would voluntarily have relinquished unwarranted in principle or precedent. Why her whole interest in his estate. The statthe testator did not alter his will cannot be ute of divorce prescribes that, upon the disknown. He had almost two years in which solution of marriage, ‘all and every the duto change it. Although divorced, the devi. ties, rights, and claims accruing to either see was not a stranger to him or to his of the parties at any time theretofore in blood. She was the mother of his only pursuance of said marriage shall cease and child. Both remained unmarried to his determine,' and to this extent is part of the death. Her subsequent marriage did not, so
law of distribution. And why not apply far as the record shows, enter into any con this broad principle to wills? Because, says sideration, and is immaterial. There was no counsel, there can be no implied revocation change or alteration in his estate when the without statutory prescription; and divorce will took effect. The principal object of his is not prescribed. But it is fully established bounty, his only son, who takes the remain that change of circumstances raises a preder (by far the greater portion) of his sumption of change of intention, and works estate, still continued as the chief object of a revocation of a will; and this presumption
His will, made after the separation, is said to be so strong that it may not be taking effect at his death, is presumptive rebutted by parol evidence, on the ground legal evidence that he was satisfied, and so that this would be productive of the evils intended the disposition of his property. which were intended to be averted by the He could, after the divorce, have made a statute of fraud. Marshall v. Marshall, 11 new will with the same devise to the same Pa. 430. There are subordinate reasons person or any other devise to any other per. everywhere, said the court in Young's Apson; that he did not do so is persuasive that peal, 39 Pa. 115, 80 Am. Dec. 513, varying he intended the devise to Mary Brown Jones, the rule according to the laws of descent. his former wife, the mother of the child | The positive rules are given sometimes by born to them both, to remain in effect. In statute and sometimes by judicial decision; Schouler on Wills, § 427, it is said: 'In und the most positive of them are sometimes short, revocation of a particular will by changed merely incidentally by a change in mere inference of law or presumption is the laws of descent. For the law does not limited to a very few instances in our mod. do or require vain things. It has according. ern practice; while, on the other hand, ly been held again and again that testator's changes in the condition of the testator's sale of a thing specifically given is an imaffairs or through the mortal chances to plied revocation pro tanto, notwithstanding which both he and his beneficiaries are ex the absence of statutory prescription. 1 posed may work out a very different settle. Wms. Exrs. 242. So, it was held in Carey's ment and distribution of his estate after his Appeal, 75 Pa. 201, that revocation may be death from what the will purported to ar implied from change of domicil. No one range. Modern legislation itself repudiates can doubt that refusal to accept a legacy in England and many of our states the will work revocation pro tanto. Re Bryce, whole theory of a presumed intention to | 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 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 “There is obviously an essential difference the occurrence of new social relations and between a gift to 'my wife, Mary Brown 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 before 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.
its continued existence; while the latter im“The pivotal question, then, is whether or plies no more than a purpose of identificanot the change of conditions since the mak tion of the object of bounty. The question ing of this will produced such a change in in this case is not who was intended to take, testator's previous moral obligations and —for Mr. Jones cannot be supposed to have duties as raises a reasonable presumption had in contemplation a future wife,-but of alteration of his mind, and implies revo the character in which this legatee was incation of the bequest which he had made to tended to take, whether because of her mari. his wife? If the gift was made because of tal relation to testator or simply as an inthe existence of the marital relation, di dividual. If given because of the marital vorce would certainly take away the reason relation, as the description imports, she can for it; and without the reason which in take it in no other character than as widow. spired, the legatee could have no equity to It is suggested that to produce this effect claim it. It is immaterial whether her hus an express condition of continuance of the band made a will or not; for, her applica marriage relation must have been attached tion having been a voluntary and absolute to the gift; but there is no apparent reason renunciation of ‘all and every the duties, why an implied condition should not be just rights, and claims accruing
as effective; and tne form of this gift imsuance of the marriage,' she took the risk, plies continuance. · Not only does the deand should abide the consequence. It is scription of the legatee import on its face safe to assume that the gift would not have a conditional gift, but the quantity of the been made if the beneficiary had not stood gift implies that testator had in view the in the relation of wife. It may be that Mr. intestate law, and therefore marital right, Jones's misconduct was so gross as to justi as the reason, There is a well-settled prinfy his wife leaving him, and that under the ciple that a widow will be presumed to take spur of remorse he made the will as a peace 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 “What Mr. Jones did or failed to do after grounds suggested by the peculiar language the divorce was granted has nothing to do of the will as showing testamentary intent with the question involved here. If the di- to make an absolute gift. No authorities vorce worked a revocation, it could not be were cited. In the other case (Charlton v. republished in any manner other than that Miller, 27 Ohio St. 298, 22 Am. Rep. 307) prescribed by the statute of wills. Many the bequest was made in contemplation of wills have been revoked pro tanto by impli- marriage, and the court very properly held cation—as, for example, in case of ademp- that it did not depend on marriage, and tion—without a suggestion that testator could not, therefore, be lost by divorce. was required to make it effectual by a writ. Even those cases which deny implied revocaten modification of his will. The case of tion by divorce concede that a slight indicaBrown v. Ancient Order of U. W. 208 Pa. tion of a different intent will prevail, and 101, 57 Atl. 176, is clearly distinguishable are therefore distinguishable from the presfrom this in that it was based upon a con ent case on this ground. On the other hand, tract whose terms made change of benefici- the case of Lansing v. Haynes, 95 Mich. 16, ary dependent on the act of the assured. 35 Am. St. Rep. 545, 54 N. W. 699, cited for Why Mr. Jones did not do what he was not the estate, is a strong authority in support required to do, the evidence fails to show. of the doctrine of implied revocation by diHe may not have been in a condition after
Mr. Lansing and wife executed muthe divorce to have taken action, or he may tual wills of their respective estates, and have been advised or thought it unneces were afterward divorced. Pending the suit sary; but, in any event, he owed no duty to in divorce they entered into an agreement of this claimant. It may be conceded that division and release of their property, but there are English cases inconsistent with no reference was made therein to their this view,--some of them arising on mar wills; and on Mr. Lansing's death an issue riage articles, and some on wills; but the was raised of implied revocation on Mrs. cases even there were not harmonious. Vice Lansing's presentation of the will. In a Chancellor Malins said of Boreham v. Big- very able opinion by Mr. Justice Grant the nall, 8 Hare, 131, the leading case, that the court held that, because of the absence of court evidently thought, from the peculiar any reference to the will, the agreement did language used, that there was an intention not amount to an express revocation under to benefit the particular wife of his nephew, I their statute, but that an implied revocation
arose from the divorce. ‘By the decree of | Dec. 610; Lee's Estate, 207 Pa. 218, 56 Atl. divorce in this case,' said the court, the 425; Miltimore v. Miltimore, 40 Pa. 156. parties became strangers to each other, The language of the will itself, and the and neither owed to the other any obliga- circumstances surrounding the testator tion or duty thereafter. There was there when the will was made, show that the tesfore a complete change in these relations;' tator intended this gift to his wife in her and the case fell within the principle laid character or relationship as such, and not down by Chancellor Kent, as above quoted, otherwise. No Pennsylvania supreme court decision has A legatee must answer the description and been found in conflict with this view. The character contained in the will. case of Brown V. Ancient Order of U. W. 2 Wms. Exrs. *1089. 208 Pa. 101, 57 Atl. 176, cited on behalf of The will speaks from the death of the claimant, is, as already suggested, distin- | testator. guishable from this by the fact that the Act June 4, 1879, P. L. 88, $ 1; 2 Wms. right of the beneficiary had been fixed by Exrs. *1089; Anshutz v. Miller, 81 Pa. contract, subject to a new designation on the 212; Bell v. Smalley, 45 N. J. Eq. 478, 18 part of the assured, which never made, Atl, 70; Hitchins v. Morr on, L. R. 40 Ch. whereas revocation here arose by implica- Div. 30; Seibert's Appeal, 18 W. N. C. 276. tion of law, and there was no republication 6 Atl. 105. as prescribed by statute.
The case may, The bequest to Mary Brown Jones has therefore, to use the language of the court been revoked by implication by reason of the in Lansing v. Haynes, 95 Mich. 16, 35 Am. changed relations produced by her obtainSt. Rep. 545, 54 N. W. 699, be decided on ing a divorce from the testator since the the 'common sense and reason upon which making of the will. the law is based.'
Lansing v. Haynes, 95 Mich. 16, 35 Am. “None of the judges who deny implied St. Rep. 545, 54 N. W. 699. revocation by divorce attempts to reconcile Messrs. Seymour, Patterson, & Siehis position with the common-law doctrine beneck, for appellee: 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 Irish v. Smith, 8 Serg. & R. 580, 11 Am. in testamentary disposition; but it is not in Dec. 648; Brown v. Ancient Order of U. W. human nature to give to her who has held 208 Pa. 101,57 Atl.176; Padelford's Estate, his domestic faults up to public gaze as a 190 Pa, 48, 42 Atl. 381; Charlton v. Miller. means of dissolving marriage. Who would | 27 Ohio St. 298, 22 Am. Rep. 307. for a moment believe that, if Mr. Jones were The word "wife,” standing before the word living to-day, he would give Mrs. Speer ‘one “Mary," is intended to identify her from third of his estate? To ask is to answer other "Mary Joneses,” and not to imply a the question. Independance, of the personal condition that she must remain his wife. question, consideration for his son's in- Williams v. Neff, 52 Pa. 336; Hardy v. terest would have a deterrent effect. The Smith, 136 Mass. 328; Anshutz v. Miller, 81 divorce caused such change in circumstances Pa. 212; Morse v. Alason, 11 Allen, 36: that his son became presumptively the sole Schult v. Moll, 132 N. Y. 122, 43 N. Y. S. R. object of testamentary obligation. And, on 484, 30 N. E. 377; Bullock v. Zilley, I N. J. the other hand, it is impossible to under. Eq. 489; Johnson v. Johnson, 1 Tenn, Ch. stand how, in iew of Mrs. Speer's renun- 621. ciation, she can consistently claim what, The term "wife" relates to the wife at without the existence of the marital rela- | the date of the will, tion, would never have been given. She has Garratt v. Niblack, 1 Russ. & M. 629; 2 no equity to recognition.
Jarman, Wills, 1876 ed. *380; Re Bryan, 2 “For these reasons I would disallow this Sim. N. S. 103; Franks v. Brooker, 27 claim."
Beav. 635; Bullock v. Bennett, 7 De, G. M.
& G. 283; Violett v. Brookman, 26 L. J. Ch. Messrs. Watson & Freeman, George N. S. 308; Anshutz v. Miller, 81 Pa. 212; C. Wilson, and William D. Evans, for | Fitzgerald v. Chapman, 33 L. T. N. S. 587; appellant:
Babcock v. Smith, 22 Pick. 61; Bullmore v. There is no difference in principle whether Wynter, 48 L. T. N. S. 309; Hellon's the marriage is destroyed by death or by Estate, 28 W. N. C. 120; Sharpe's Estate, the sentence of the law.
15 W. N. C. 419. Flory v. Becker, 2 Pa. St. 470, 45 Am. The divorce did not affect the gift.
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 fol. Rep. 187; Boddington v. Clairat, 48 L .T. low the divorce, in so far as the duties, N. S. 110; Mcknight v. Read, l Whart. rights, and claims accruing to her by rea222; Dilley v. Mattheus, 8 L. T. N. S. son of the marriage are concerned. With 762; Sleele v. Thompson, 14 Serg. & R. 88. 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 mar
Young'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 deThe statute limits such revocation to cree the testator was no longer bound to either marriage or birth of issue pro tanto, provide for her, and she had no further and excludes any other change.
claim upon his estate. What the law gave, Coates v. Hughes, 3 Binney, 498; Clin- it took away; nothing more. The beneficiary gan v. Mitcheltree, 31 Pa. 33; Heise v. is not here claiming anything which accrued lleise, 31 Pa. 246; Walker v. Hall, 34 Pa. to her in pursuance of her marriage. She 483; Dixon's Appeal, 55 Pa. 424; McCul is here only as a legatee, and is asking for loch's Appeal, 113 Pa. 247, 6 Atl. 253. that only which the testator gave to her of
The word "wife” merely identifies the his free grace, and as a matter of bounty. beneficiary with particularity, and does not That which he gave to her in his will was imply any condition.
his own to give or to withhold, as he saw Theobald, Wills, 1881, 2d ed. p. 210; / fit. A bequest needs no consideration to Starden v. Standen, 2 Ves. Jr. 589; Re support it. As a legatee she stands upon Blackman, 16 Beav. 377; Doe ex dem. Gains the same footing as any other individual, v. Rouse, 5 C. B. 422; Re Ingle, L. R. 11 and her relation to the testator has nothing Eq. 578; Re Petts, 27 Beav. 576; Giles v. to do with the ease, unless he chose to make Giles, 1 Keen, 685; Boreham v. Bignall, 8 it an element in the bestowal of the gift. Hare, 13); Re Burrore, 10 L. T. N. S. 184; Did he do so? The provision in the will is Re Cahn, 3 Redf. 31; Rishton v. Cobb, 9 as follows: “I direct that my funeral exSim. 615; Morse v. Mason, 11 Allen, 36: penses and all debts be promptly paid, and Hardy v. Smith, 136 Mass. 328; Johnson v. that my estate be divided as follows: One Johnson, 1 Tenn. Ch. 621; Schult v. Moll, third to my wife, Mary Brown Jones, and 132 N. Y. 122, 43 N. Y. S. R. 484, 30 N. E. the balance to my son, Thomas Mifflin 377; Bullock v. Zilley, 1 N. J. Eq. 489; Jones.” The will was dated April 24, 1899, Williams v. Neff, 52 Pa. 326; Bain v and Mary Brown Jones was then the wife Lescher, 11 Sim. 397.
of the testator. On February 6, 1900, the
said Mary Brown Jones began proceedings Potter, J., delivered the opinion of the in divorce, and the decree was granted to her court:
on September 19, 1900. Thomas M. Jones, The questions presented by this appeal, Jr., the testator, lived about one year and stated by the appellant, are: (1) Does a eight months after the divorce was grantlegacy in these words: "one third to my ed, and died on May 17, 1902. Mary Brown wife, Mary Brown Jones," lapse when the Jones did not remarry during the lifetime of wife, subsequent to the date of the will, at the said Thomas M. Jones, Jr., but she did her own instance, obtains a divorce a vin- marry about six months after his death. It culo matrimonii? (2) Is a bequest "to my will be noticed that the gift was to “my wife, Mary Brown Jones," revoked by im wife, Mary Brown Jones," without any conplication by reason of absolute divorce? ditions or limitations. The testator gives We take up these questions in order.
the one third of his estate to a particular What is there in the facts of this case to person, naming her, and further identifysupport the claim that the legacy has ing her by the statement that she is his lapsed? The person named as lega tee did wife. That is in substance what he says. not die in the lifetime of the testator, nor He make no stipulation that she shall redid any other event occur in the lifetime of main his wife, or be such at the time of the testator, which, under the language of his death. We are clear that such use of the will, would render the testamentary gift | the word "wife” as is here made, is de