The following opinion on motion for rehearing was filed November 25, 1922. Former judgment vacated, and judgment of district court affirmed.
Heard before Letton, Rose, Aldrich, Day and Flans-burg, JJ., Rbdick, District Judge. Flansburg, J.On motion for rehearing. Former opinion, ante, p. 681.
This was an action by plaintiff, Mrs. Bartlett, claiming the property of her former husband by virtue of a will which named her sole beneficiary. The defense was that, by reason of the divorce of Mrs. Bartlett and her husband *692and a settlement of property rights between them, the will had become revoked by implication of law.
The facts are fully set out in the former opinion. In brief it is shown that the testator, Mr. Bartlett, executed the will in question at a time when he entered the masonic-lodge, in December, 1903. In 1916 plaintiff obtained a divorce from him and was awarded judgment for $5,000 alimony, suit money and attorney’s fees. She also was given the household furniture, and, in addition, he was required to pay her $100 a month until the court should othemvise order. Pie refused-to comply with the order, and .plaintiff resorted to an attachment and other court proceedings for the purpose of compelling payment. Pending that litigation, an agreement of settlement was entered into, whereby he paid to her a certain amount of money and delivered to her the household furniture; it being agreed that this was to be in full settlement of the judgment, for amounts already accrued and all amounts to accrue in the future. By this agreement these parties made a complete settlement as to their then existing property rights.
The question presented is whether a divorce between husband and wife, coupled with a complete settlement of property rights, constitutes such a change of circumstances as to revoke, by implication, a will in favor of the wife, executed by the husband prior to the divorce.
There are decisions to the effect that the divorce alone of the testator from his wife after the making of his will is not sufficient by implication to revoke the will. Card v. Alexander, 48 Conn. 492; Charlton v. Miller, 27 Ohio St. 298; Jones’ Estate, 211 Pa. St. 364; 40 Cyc. 1205.
However, we believe it to be a well-established rule and one which is nearer in accord with reason and justice, that a divorce, coupled with a settlement of the property rights' of the parties, is such a change of circumstances as to work an implied revocation. Lansing v. Haynes, 95 Mich. 16; Donaldson v. Hall, 106 Minn. 502; Wirth v. Wirth, 149 Mich. 687; Will of Battis, 143 Wis. 234.
*693It is argued that our statute does not permit of an implied revocation in such a case.
The statute (Comp. St. 1922, sec. 1250) reads: “No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person ■in his presence and by his direction; or by some other will or codicil in writing,, executed as prescribed in this article; or by some other writing signed, attested and subscribed in the manner provided in this article, for the execution of a will; excepting only, that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the conditions or circumstances of the testator
The contention is made that the “revocation implied by law” in the statute covers only such cases where the particular facts would have been sufficient at common law to have worked a revocation. The marriage alone of a woman revoked her will, and, in the case of a man, marriage and birth of issue.
The reason for an implied revocation at common law is found in the peculiar conditions of the law governing the family relation at that time, which at this time and at the time of the enactment of the statute in question had been changed. At common law the will of the woman was revoked by marriage because coverture destroyed her testamentary capacity. The law in Nebraska at the time of the enactment of the statute in question had been modified in this respect, and a married woman had been given a limited testamentary capacity. Now she has the same rights with respect to her property as a man. The same reason for an implied revocation upon the marriage of the woman, therefore, does not now exist. Baacke v. Baacke, 50 Neb. 18. As to an implied revocation of the man’s will by marriage and the birth of issue, the situation had, at the time of this enactment, also to a degree .been changed. Provision had been made by statute for an inheritance to any child born after the testator had made his will, unless expressly dis*694■inherited by the will. Comp.. St. 1922, sec. 1266. In the Baaoke case, in an interpretation of the statute, it was said that the statute left it for the court to say what changes in the condition and circumstances of the testator should be sufficient to work an implied revocation.
The statute, instead of attempting to preserve and provide for those specific revocations allowed at common law, we believe, sought to preserve and perpetuate the underlying principle only upon which those revocations were based. To our mind, the legislature, in using the phrase authorizing such revocations as are to be implied by law, enunciated.a rule of justice and a principle that the court should recognize and apply, whenever the change in the conditions- or relations of the testator should be sufficient to create different duties on his part, or sufficient to make other persons than those who existed at the time of the making of the will the natural and proper objects of his bounty, and to raise a clear presumption that the testator would have desired to make a revocation, had his attention been directed to it. In the cases cited above, statutes, identical in wording with the statute here under consideration, were so interpreted. Where a husband and wife are divorced and their property rights settled, -the wife is excluded from any further share in the husband’s estate. Her relation to him as an heir is destroyed. In her place, the law points out who the proper heirs and distributees of his estate shall be. To these persons he also owes a natural obligation. It is beyond reason to suppose that a husband, after a divorce and settlement of property rights, should still desire that- a will, which he had previously made in favor of his wife, should continue, and that his estate should pass to her under 'the will, to the exclusion of his natural heirs. As said in Lansing v. Haynes, supra: “The natural presumption (that there is an intended revocation) arising from these changed relations is the reasonable one, and the one which in law implies a revocation.” “To hold the will unrevoked under these circumstances *695would be repugnant to that common sense and reason upon which the law is based.”
A full property settlement between husband and wife, either expressed in their agreement or embodied in the divorce decree, is usually arrived at after a consideration of the value and extent of the estate of the husband. The wife upon the separation is given an award, its amount influenced to a large degree by the inchoate interest that she then has in her husband’s property. Such a settlement, so far as it affects the husband’s will, bears to some degree the characteristics of an ademption, and it is the underlying principle of justice Avhich supports the rule as to ademption which no doubt gives-strength and reason to the implied revocation in case of a divorce-and property settlement betwen husband and wife.
Plaintiff relies upon the decisions in the cases of Jones’ Estate, 211 Pa. St. 364, and In re Estate of Brown, 139 Ia. 219. In the Jones case the court, in rendering the opinion, points out that the statute in that state expressly proAddes the specific manner in which revocation may be had, and does not contain a general provision for revocations by implication. The court also distinguished the case of Lansing v. Haynes, supra, pointing out that in the Lansing case there had been a property settlement. We might further mention, though it hardly bears upon the question here, that in Pennsylvania, in the case of Morris’ Estate, 22 Pa. Dist. Rep. 466, a property settlement, made betAveen husband and wife at the time of divorce, was even under the Pennsylvania statute held to be sufficient to revoke the will.
The decision in In re Estate of Brown, from Iowa, is also based upon a statute which, like that in Pennsylvania, is not similar to our own.
The decision in Baacke v. Baacke, 50 Neb. 18, is urged as controlling the question here. In that case the contention Avas made that the will had been revoked by a series of circumstances, including the divorce of the wife, the death of one child for whom provision had been made in the *696will, and the birth of three other children. The divorced wife was not a party to the suit and made no claim to a revocation pro tanto in her favor, nor to a distributive share of the testator’s estate. Though the court held generally in that case that there was no implied revocation, in speaking particularly of the divorce and property settlement, the court said (p. 23) : “It could no more than revoke the will as to her (the former wife’s) legacy, and whether it would have that effect in this case it is not necessary now to determine, as the question is not before us.” That decision expressly left the question, here under consideration, open for future solution.
We therefore believe that our former opinion should be modified as herein indicated. The former judgment of this court is set aside, and the judgment of the lower court is
Affirmed.
Aldrich, J., dissents.