dissenting separately. .
After providing for the manner in which a will may be revoked, section 1250, Comp. St. 1922, concludes with a proviso, or exception clause, which reads: “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.”
I respectfully submit, that, under the great weight of authority, the clause in question should not be applied to the facts in the present case and the will held for naught. In the main opinion it is said that the legislature, in the enactment of the clause in question, “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.”
It is the application of the rule to the facts of which I complain. No reference is made in the record to “other persons than those who existed” when Bartlett’s will was *697made who should, to the exclusion of Bartlett’s wife, become the “natural and proper objects of his bounty.” The Bartletts were childless. The claimants are his sisters. Both are adults and both are married.
Nor is there anything in the record that even tends “to raise a clear presumption that the testator would have desired to make a revocation, had his attention been directed to it.” Every pleaded fact and every presumption points the other way. The contestants themselves, in their answer, pleaded that the divorce was obtained by Mrs. Bartlett on account of her husband’s wrong-doing, and in her reply Mrs. Bartlett pleaded that she “secured a divorce from her said husband on account of the violation of the marriage contract and obligations by him.” It is also significant that she pleaded that she, “by her labors, frugality and thrift helped him (her husband) to acquire and accumulate the estate of which he died seised and' possessed.”
In view of the record, can it be fairly said, as argued by the majority, that “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?” The answer is that it is clearly within the pale of finite reason to believe that a man who was not lost to every sense of honor, and whose wife had obtained a divorce from him because of the violation of the marriage vows, would naturally make such poor amends as money and property might make for his misconduct. Should there remain a lingering doubt anywhere that Bartlett died in the fond belief that by his will he had made some amends for the wrongs he had committed against the woman whom he had made his wife? ■ If such doubt does remain, it may well be said that another terror has been added to Death’s storehouse.
The merits of the clause in question are not of course for discussion here. Nevertheless it is proper to observe *698that the revocation of a will by implication is not a favorite of the law and should not be permitted except in the clearest case.
A testator is endowed with the inalienable right to rest in the belief that his will, if unrevoked by him, shall stand just as he made it, if it conforms to the rules of law. He •should not be harassed by the spectral thought that some other person or persons will- presume either to change the terms of a will so made or to set it aside.
In the firm belief that a grievous wrong has been committed against Mrs. Bartlett by a misconstruction of the •intent of the legislature and that a highly technical and harsh interpretation of a rule of law has been improperly applied to the pleaded facts, I respectfully dissent from the conclusion of the majority and therefore adhere to the rule announced and adopted by the court in the former opinion, ante, p. 681.