(dissenting):
I cannot follow the path taken by my brethren. The point of departure for all of us becomes for me the point of return —the word of the testator executed in full accordance with the statute, witnessed by two adult witnesses. No word written down by ordinary man is more solemn than his last will and testament. The governing legislation not only pro*240vided the requirements for the writing to be effective as a testament, but carefully provided that one who wished to revoke his will might do so by written document or destruction of the prior will. 19 D.C.Code § 103 (1961 ed.). Even the untutored who do not know of the statutory provisions are generally aware that their solemn word stands unless destroyed or amended.
Almost as venerable as the legislative enactment — the statute of frauds and the statute of wills — is the judicial encroachment or exception established by the common law doctrine of implied revocation of wills.1 *In 1945 Pascucci v. Alsop2 overturned prior decisions in this jurisdiction and accepted implied revocation as a common law doctrine, applicable to a man who subsequently married and had children under the common law rulings prior to the Revolution and the reception statute.3 This common-law approach need not be limited to those examples. Change in legal rules adapted to changing times and the changing needs of society is a hallmark of the common law, including common law exceptions to legislative enactments.
Any new content for the doctrine of implied revocation of wills as a judicial exception must, however, satisfy the purpose and policy of that doctrine. In Pas-cucci the court had available the almost overwhelming presumption that the deceased did not intend his property to devolve in accordance with his testament, in the absence of republication or a new document after acquiring a wife and child. No similar injustice or presumption exists in the case of divorce and property settlement. Unlike wives and children, the common law heirs, possibly remote, are not especially favored by the law. Nor can it be assumed that to the testator they represent a clear choice in preference to the former wife. That choice is even less clear if we are acting not out of deference to hoary precedent, but out of an assumption as to the needs of modern times. In modern society divorce is not only more frequent than it used to be, but increasingly is sought notwithstanding considerable and genuine affection by couples who realize that they have become incompatible,4 ***and that their divorce will at least provide the possibility of taking up life anew.
Doubtless many, perhaps most, divorced men desire to disinherit their wives. Doubtless many do so, some even with ceremonial bonfires and whoops of joy. What we are considering, however, is the probable intent of those divorced men who do not destroy their wills. It is fair to observe that people tend to do the things they really want to do, and that inaction generally signifies contentment or at worst indecision.
The procedural record leaves us without findings as to testator’s actual intent.5 Nevertheless, it is fair to con-*241elude that this record suggests a man who was virtually indifferent to if not estranged from his brother,6 but still sentimental, if not loving, in his thoughts of his former wife.7 This is relevant precisely because it occurs often enough among divorced men — and presumably still more often among divorced men who do not revoke their wills — that I am not sufficiently convinced of the probable intention of the testators to override their own writings.
The doctrine whereby courts can define the changed circumstances constituting implied revocation is hardly an essential of modern life. In England where the doctrine arose it was abolished more than 100 years ago by statute.8 Some American states have followed this course.9 In the array of values underlying legal rules certainty is no longer accorded the preeminence that was proclaimed for it in the last half of the 19th century. But if there is any field of law where certainty commands a premium, it is the law of wills. And the doctrine of implied revocation as a judicial exception necessarily connotes areas of uncertainty as to what will be held to constitute a change of circumstances sufficient to constitute revocation.10 It is striking that the State of Maine, which provides the leading precedent for revocation by implication in case of divorce with property settlement, nevertheless fails to find revocation in what seems to me the more compelling Pascucci situation, of subsequent marriage and children.11
Accepting the doctrine of implied revocation of wills as a judicial exception, it is properly confined, in my view, to such change of circumstance, like the Pascucci *242situation, as provides a clear presumption that revocation accords with the testator’s intent, and the conviction that revocation is necessary to avoid injustice. In other situations, the premium of certainty bids us pay the price of an occasional injustice where a man forgets his outstanding will or is negligent or inattentive. Even changes of great significance in normal testamentary expectancy may fall short of implied revocation. Allen v. Heron, 81 U.S.App.D.C. 298, 157 F.2d 707 (1946).
There is a difference between the permissible approach of a court and of a legislature to the task of defining the circumstances that constitute revocation of a will by implication of law. There is much to be said for the kind of legislation passed in some states, and proposed in § 53 of the Model Probate Code, that subsequent divorce revokes a testamentary provision in favor of the spouse.12 That is a legislative-type choice, one that is designed to put all parties on notice that henceforth, in case of divorce, all outstanding wills are revoked and new testaments are required. The authors if the Model Probate Code, while approving the philosophy that divorce constitutes such a change of circumstance as to warrant setting aside prior wills, expressly note their view that this approach should not be adopted by a court in the absence of specific statutory command. They state in their comment to section 53 that a purely judicial doctrine of implied revocation “introduces an undesirable element of uncertainty into the question of the validity of a duly executed will.”
The judicial or common law approach is properly limited to finding revocation of a will only where necessary to effectuate probable intention and prevent injustice. By these standards divorce is not sufficient for revocation. A man who wishes to disinherit a divorced wife has the option to do so in case of a property settlement, or wherever disinheritance does not violate the decree or an agreement. He can accomplish any intention of disinheritance by following the simple procedures outlined in D.C.Code § 19-103. A man who intends to disinherit a divorced wife is more likely to speak up to his counsel at once, and have it taken care of. A man who has decided not to disinherit his divorced wife is less likely to bring the matter up even assuming he is aware of the little-known statutory technique of republication of a will. He may be hesitant to expose and enlarge the wound to his ego by admitting the depth of his affection for the former wife. He may have the hope that a new and more reciprocating object of his affection may yet appear on the scene.
The majority opinion indicates agreement with the ruling of Judge Laws (supra, note 3) that mere divorce does not work an implied revocation. I question whether the addition of a property settlement is so significant a difference in degree that the legal consequences should be drastically different. If the decisive factor is that the property settlement terminates all obligation to his former wife, that may also be established by a decree of divorce even in the absence of property settlement. If the termination of obligations was an immediate bargained-for right of consequence, he would presumably have taken advantage of his freedom from testamentary obligation to make a new will.
These matters are more properly for legislative than judicial determination, a determination that may depend significantly on a factual inquiry. In practice there may be all kinds of reasons for a property settlement solution to a divorce problem which do not bear significantly on the problems of implied revocation— tax reasons; reasons of pride; perhaps a simple recognition that both spouses really made property and perhaps salary contributions to their total wealth. The obligation of the deceased to transfer certain property, as a minimum, during *243his life does not negative a desire to leave other property after death, and more than the minimum, at least in the absence of new responsibilities.
There is no significance in the 1965 revision of the District of Columbia Code providing a new section 18-109, effective January 1, 1966, even assuming it may be taken into account for a case involving prior events. It provides that a will “may not be revoked, except by implication of law,” otherwise than by destruction or a later writing. This exception merely flags, in the large type of the statute rather than the annotation, the existence of a doctrine of revocation by implication. As to the content of what constitutes revocation by implication of law, the Reviser’s Note makes plain that the revision was merely an acceptance of Pascucci, which in turn merely accepted revocation by implication from a subsequent marriage and children as a common law rule that had emerged before our Revolution. Along with Pas-cucci, the Reviser cited Allen v. Heron, swpra, applying “the usual common-law rule that a will in favor of a wife is not revoked by the birth of a child” and not finding that revocation “would probably reflect the testator’s wishes.”
There is relatively little time that a legislature concerned with awesome problems of national policy can be expected to devote to the private affairs of residents of the District of Columbia. Hence I would not shrink from expansion of common law doctrine to avoid injustice. A property settlement may be more conducive than continuing alimony to the start of a new life with another wife. But when the husband has not found a new spouse and has not destroyed his solmen will and testament, I do not find a clear-cut presumption or injustice which impels me to mandate intestacy in the absence of a legislative expression that this is the consequence of a property settlement.
I respectfully dissent.
. See generally 2 Page, Wills, 471-558 (Bowe-Parker Rev., 1960). The theory of implied revocation evolved in the ecclesiastical courts (p. 471).
. 79 U.S.App.D.C. 354, 147 F.2d 880 (1945).
. Judge Laws’ memorandum opinion in In Estate of Hale Plahn Daugherty, 1 Mersch, Probate Practice in the District of Columbia (2d ed. 1952) § 672, holds that divorce alone is not sufficient to revoke a will. He states that the weight of authority finds revocation in a divorce coupled with a property settlement, but specifically avoids a statement that this would be the rule in the District of Columbia, On the contrary, he points out that there is nothing in Pascucci “which indicates the rule of the common law had been extended” beyond marriage, for a woman, and marriage and the birth of issue, for a man, as constituting grounds for revocation of a will by implication.
. In the District of Columbia the grounds for divorce include voluntary separation without cohabitation for one year (five years prior to the passage of Public Law 89-217 on September 29, 1965). D.C. Code § 16-904. This is in effect an acceptance of the ground of incompatibility, with the safeguard that the parties will not act in undue haste.
. The brother introduced no evidence whatever as to actual intent of the deceased, but sought judgment of revocation as a matter of law, regardless of actual intent. The former wife contended that the will was operative (1) as a matter of law, *241regardless of the intent of the deceased, and (2) in the alternative, because it represented the actual intent of the deceased. The trial court directed a verdict for the wife.
. Cf. Luff v. Luff, 105 U.S.App.D.C. 366, 267 F.2d 643 (1959), litigation involving a dispute between testator and his brother, appellant here, over proceeds of a large partnership claim against the Government.
. His bureau drawers were stocked with bow ties which his wife had made out of the same material as her dresses, mementos of their days as a “team.” Photographs of her abounded in his apartment. Also in his apartment was the will sent him by his former wife one year after the divorce. He died a year later at age 72. They had been married for twelve years prior to the separation.
. 7 Wm. IV & I Viet., 0. 26, § 20 (1837).
. Rees, American Will Statutes, 46 Va.L. Rev. 856, 880 (1960).
. There is a split of opinion concerning revocation of wills by implication from divorce plus property settlement:
(a) For commentators approving, see: Thompson, Wills, § 176, p. 277 (3d ed. 1947); Note, 50 Colum.L.Rev. 531, 534 (1950) (approving a rebuttable presumption).
(b) For those disapproving see: 2 Page, Wills, § 21.101 (Bowe-Parker Rev. 1960); Durfee, Revocation of Wills by Subsequent Change in the Condition or
Circumstances of the Testator, 40 Mich. L.Rev. 406, 417 (1942).
The court opinions look both ways. But in most eases approving implied revocation from divorce and property settlement the courts rely on statutes expressly providing for revocation of wills through changes in testator circumstances. These statutes were apparently read as a signal of legislative welcome to implied revocation. They are more suggestive of such a signal than our new Code, discussed infra, p. 243.
. See Caswell v. Kent, 158 Me. 493, 186 A.2d 581 (1962).
The court there indicated that since subsequent marriage and issue does not revoke a will by implication, in view of its prior decisions, and since that statute contemplates some revocation by implication, unless that provision is mere sur-plusage, it is proper to find revocation by implication in case of divorce and property settlement. Without discussing further this curious inversion of values, our jurisdiction at least does recognize revocation by implication in the Pascucci situation. It is therefore not necessary to reach out to the situation of divorce and property settlement in order to provide content for the new statutory provision recognizing revocation by implication. Our new statutory provision is given full recognition by construing it as a codification of the doctrine announced and applied in Pascucci without making it a point of departure for extension of Pascucci.
. See Atkinson, Wills, § 85, p. 432 (2d ed. 1953).