ROSLYN S. HERTRAIS vs. GEOFFREY DOANE MOORE & another.

WILKINS, J. This petition by Roslyn S. Hertrais, formerly Roslyn S. Moore, is for the probate of an instrument executed May 5, 1943, as the will of her former husband, Robert D. Moore, whose only heirs at law and next of kin are their two minor sons, Geoffrey D. Moore and Frank L. Moore, 2d. A guardian ad litem was appointed to represent the interest of the minors. The case was heard on agreed facts, and the petitioner appealed from a decree disallowing the will. The decree recited that the sole beneficiary under the instrument is the petitioner, who at the time of its execution was the wife of Robert D. Moore; that on December 10, 1946, a decree nisi for divorce was entered on her libel against him; that the divorce decree became absolute on June 10, 1947; that "there was a property settlement agreed upon" between them at the time of the divorce; that on July 7, 1948, she married Wesson S. Hertrais; and that on July 23, 1948, Robert D. Moore died. Two of the agreed facts are that the will was properly executed, and that on the date of execution Robert D. Moore was of testamentary capacity. Thus, it would seem that the will was disallowed, as the parties assume in this court, on the ground that it had been revoked "by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law." G. L. (Ter. Ed.) c. 191, Section 8. [Note p58-1]

This statute in substance has long been part of our law. Rev. Sts. c. 62, Section 9. Gen. Sts. c. 92, Section 11. Pub. Sts. c. 127, Section 8. R. L. c. 135, Section 8. The reference to implied revocation was first introduced by Rev. Sts. c. 62, Section 9, [Note p58-2] in the words,

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"excepting only, that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." The other provisions as to revocation were substantially taken from St. 1783, c. 24, Section 2. It is of value to examine the report of commissioners appointed to revise the general statutes (1834). See Wine v. Commonwealth, 301 Mass. 451, 455. Part II of the report contains the following (page 26): "The clause as to implied revocations, recognizes and adopts the existing law, as established and understood among us; [Note p59-1] but as the words of the statute are so strong and explicit, and this exception is so important, it may be thought best to express it. The New York code proceeds to define the cases in which such a revocation will be implied; to wit, if the testator be a man, his subsequent marriage and the birth of a child; and if a woman, her subsequent marriage, although there be no issue of the marriage. But the commissioners have thought it better, and more consistent with the terms of their commission, in this and in all similar cases, to avoid enacting or repeating in the proposed code any of the rules or principles of the common law, unless when it is required for the explanation of some enactment, or for other weighty reason."

In Swan v. Hammond, 138 Mass. 45, it was held that under Section 8, then in the form of Pub. Sts. c. 127, Section 8, the will of a feme sole was revoked by her subsequent marriage, as at common law, although the usually stated reason for the rule, that marriage took away her testamentary capacity and destroyed the ambulatory nature of her will, no longer applied after the passage of statutes allowing her to make a will. In rejecting a contention that the rule should be the same as in the case of a man, namely, marriage and the birth of a child, the court observed (page 46) that it

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could see no good reason why anything more than marriage should be necessary to revoke a will of either a man or a woman, but that that was a matter for the Legislature. After quoting the statute as to implied revocation, it was said (page 47), "It is not apparent that an entire revocation by implication of law results from any change of condition or circumstances, except that of a subsequent marriage," citing Warner v. Beach, 4 Gray. 162. Next quoting from the report of the commissioners, supra, the court concluded (page 47): "And their further discussion of this subject shows clearly that they had in mind the rule of the common law, that, in case of a man, marriage and the birth of a child, and, in case of a woman, marriage alone, revoked a will previously made. We are of opinion that this provision as to implied revocations, from its language, and the reasons given for its introduction, has substantially the force of an express enactment of the rules of the common law, which we are not at liberty to change, even if the reason for the rule, in case of a woman, no longer exists." The case was followed in Blodgett v. Moore, 141 Mass. 75, and Nutt v. Norton, 142 Mass. 242.

In Warner v. Beach, 4 Gray. 162, it was held that revocation of a will could not be implied from the birth to the testator of a child contemplated in the will, from the deaths of the testator's wife and one of his children, from the testator's insanity for more than forty years from soon after making his will until his death, and from a large increase in the value of his real estate, which greatly changed the proportion between the specific legacies given to some children and the shares of other children made residuary legatees. It was said by the court, speaking through Shaw, C.J. (page 163): "But an entire revocation by implication of law is limited to a very small number of cases." The only examples referred to were the marriage of a feme sole and marriage and the birth of a child in the case of a man.

In Bennett v. Brown, 222 Mass. 283, it was held, on the authority of Warner v. Beach, that the death of the wife

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during the lifetime of her husband is not such a change in condition or circumstances as to revoke his will by implication of law.

In Meyerovitz v. Jacobovitz, 263 Mass. 47, 50, it was said of the implied revocation clause, "Revocation of that nature is limited to a very small number of cases at common law, as for example subsequent marriage and birth of children without provision in the will to cover such events."

The foregoing are all the cases relating to the present question that have been decided in this Commonwealth. It is not without significance that among them there is not one dealing with the contention that a revocation of a will may be implied in law from the divorce of a testator, whether with or without a property settlement, and whether or not followed by the remarriage of his divorced spouse. Having in mind the background and origin of G. L. (Ter. Ed.) c. 191, Section 8, we are of opinion that the subsequent changes referred to are confined to the two mentioned by the commissioners in 1834, namely, the marriage of a woman and the marriage of a man and the birth of a child. Such, indeed, was the stated basis of the decision in Swan v. Hammond, 138 Mass. 45, 47. The Legislature has twice reenacted the statute since that decision. "It is a well settled rule of statutory interpretation that, when a statute after having been construed by the courts is reenacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it." Nichols v. Vaughan, 217 Mass. 548, 551. Kelly v. Morrison, 231 Mass. 574, 577. Dolan v. Commonwealth, 304 Mass. 325, 332-333.

We realize the effect on Section 8, as we have construed it, of the passage of St. 1892, c. 118, now found in G. L. (Ter. Ed.) c. 191, Section 9, and now reading: "The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation thereof. . . ." This statute appears to have been prompted by the statements in Swan v. Hammond, 138 Mass. 45, 46, supra, and clearly covers

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the same field as does the implied revocation clause in Section 8 as limited in that case and in the present opinion. In placing a man and a woman for the first time in this Commonwealth upon a uniform basis as to the revocation of a will by subsequent marriage, Section 9 made a new and useful addition to our legislation. It has been given full scope. Sughrue v. Barlow, 233 Mass. 468. For the reasons stated, its passage necessarily effected by inconsistency an implied repeal of the final clause of what is now G. L. (Ter. Ed.) c. 191, Section 8, relating to a revocation implied in law in so far as it applied to the will of a man, and it thus limited that clause so that thereafter it continued to provide solely for such revocation in the event of the subsequent marriage of a woman. Consequently, Section 8 covers no case of revocation by implication not now expressly covered by Section 9, which is the statute of broader scope.

We need not consider the varying statutes and the division of opinion among the decisions of other States dealing with divorce accompanied by a property settlement as a revocation. See Page on Wills (3d ed.) Section 522; Thompson on Wills (3d ed.) Section 176; 25 A. L. R. 49; 37 A. L. R. 312; 42 A. L. R. 1289; 24 Ky. L. J. 1. Nor do we reach the point whether the conclusion of the court below that there was a property settlement is a proper inference from the agreed facts.

The result we attain, which is compelled, we think, by our statutes and our decisions, seems to us to be the desirable one. It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a testator's actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. See Wirth v. Wirth, 149 Mich. 687; In re McGraw's Estate,

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233 Mich. 440, reversing S. C. 228 Mich. 1; Donaldson v. Hall, 106 Minn. 502, 505; In re Estate of Martin, 109 Neb. 289, 294; Will of Battis, 143 Wis. 234, 240-241. If the changes relied upon by the respondents were held to achieve a revocation implied in law, other changes can be imagined which with equal plausibility might be urged to have similar effect. Persons who have drawn wills or who are to draw wills are not now to be exposed to the risk that, in the present circumstances and perhaps others, the courts might decree revocation notwithstanding that such persons do not avail themselves of the easy means afforded by statute for accomplishing revocation by their own intentional acts.

Decree reversed.