(dissenting). I disagree with the majority’s conclusion that the effect of sec. 853.11(3), Stats., for purposes of construing the will in this case, is that the divorced spouse is, as a matter of law, presumed to have predeceased the testator. The result reached by the majority runs directly counter to the plain meaning of the language of the testator’s will and also does violence to the plain meaning of sec. 853.11(3) by legislating into that statute a provision never enacted by the legislature. Accordingly, I dissent.
The majority concedes that the will before the court in this case is clear and unambiguous. (Page 35.) A will which is clear and unambiguous does not need construction when the will and the law are not in conflict. The will clearly states that the gift over will take effect only if the testator’s wife has predeceased him or dies within six months after the testator’s death. Because the contingency of the wife’s death did not occur, I believe the gift over fails and the property must pass according to the laws of intestacy.
By establishing a rule of statutory construction that a divorced spouse whose bequest has been revoked under sec. 853.11(3), Stats., is presumed to have predeceased the testator, the majority is, in effect, engrafting the provisions of sec. 2-508 of the Uniform Probate Court (UPC) onto the Wisconsin Probate Code. Contrary to the majority’s statement that the language of sec. 2-508 of the UPC sets forth the intention of the Wisconsin legislature and the policy underlying sec. 853.11(3) (page 41), I believe that judicial engrafting of sec. 2-508 onto sec. 853.11(3) runs counter to the legislature’s intent in enacting the statute. Because the documents of the Wisconsin Probate Code Committee indicate that the committee was aware of ongoing developments in the promulgation of a Uniform Probate Code (page 40, n. 12), it is reasonable to assume that *44the committee was aware of the addition of sec. 2-508 to the working draft of the UPC. If the legislature had desired to enact sec. 2-508 or a similar provision, it could have done so — either at the time Wisconsin’s Probate Code was enacted in 1969 or at anytime thereafter. Amendment of the statute should be left to the legislature and should not be done by this court.
I also disagree with the majority’s, conclusion that it would be fruitless to attempt to divine the testator’s intent regarding the disposition of his property in the event of a divorce. The language of the will clearly states that in order for the gift over to take effect the testator’s wife must predecease him or die within six months after his death. In light of the will’s specific language, I believe the testator’s intention is abundantly clear. The gift over was not to take effect if the testator’s wife was still alive. Since none of the events under which the gift over was to take effect has occurred, the gift over must fail. Any contrary interpretation of the will provisions, and especially the majority’s interpretation, frustrates the intent of the testator and violates prior holdings of this court which stated that the paramount object of will construction is ascertainment of the testator’s intention. See, e.g., In re Estate of Ganser, 79 Wis. 2d 180, 255 N.W.2d 483 (1977).
Graef’s will was made early in his marriage, more than thirty years before his death. The will provided his wife would be his primary beneficiary if she survived him. If not, his property was to be divided equally among his parents and his wife’s mother. His wife’s predeceasing him was the condition precedent to such a distribution under the terms of the will. At the time of Graef’s death, Pearl Graef was still alive but was no longer his wife. Following their divorce, Graef had a *45right to rely on the terms of sec. 853.11(3), Stats., which denied Pearl the right to inherit under his will. There is no dispute in this case that, under the statute, the provisions of the will in favor of Pearl Graef were revoked. Since Pearl could not inherit under the statute and since she clearly was not dead and her death was a condition precedent to her mother’s right to take under the will, I believe Graef could also rely on the proposition that his property would descend as intestate property.
In Estate of Rosecrantz, 183 Wis. 643, 647, 198 N.W. 728 (1924), this court stated: “We do not understand by what process of reasoning the conclusion can be reached that the termination of the marital relations is equivalent to death in a matter of survivorship.” While the majority attempts to distinguish Roseerantz because in that case the divorce involved a son of the testator and not the testator himself (p. 34, n. 7), I believe the reasoning in Roseerantz does apply to the present action. It is simply unreasonable to equate divorce with death in matters of survivorship.
The majority considers three alternative approaches to the question presented. One approach is to treat a gift over to a blood relative of the spouse (but not of the testator) or a natural bounty of the spouse’s affections as a “ ‘provision in a will in favor of the testator's spome’ ” and, therefore, consider the provision revoked by the very terms of sec. 853.11 (3), Stats. (Page 29.)
While I believe no interpretation of the will is necessary because of the express language of both the statute and the will, the above-stated alternative would be far more equitable than the result reached by the majority. The result reached by the majority frustrates what Graef directed and deprives his family of one-third of *46his estate. At the time of Graef’s divorce, their property was, under Wisconsin law, subject to division. It is reasonable to assume that Pearl Graef received a fair share of the marital property. The majority now permits Pearl Graef’s mother to inherit one-third of William Graef’s remaining estate.
Pearl Graef is a person who is the natural object of her mother’s bounty. She, therefore, in addition to already having received a fair share of the marital property at the time of the divorce, is likely to receive one-third of William Graef’s remaining estate through inheritance from her mother. The majority skirts this issue by stating, “no extrinsic evidence was presented in this case ... to show that the bequest to Emma Garrett was in fact in favor of the testator’s spouse.” (Page 31.) I believe no extrinsic evidence is needed because the presumption of Wisconsin statutes and case law dealing with descent is that children are the natural objects of their parents’ bounty.
The majority opinion reverses the well-reasoned decision of the trial court. It changes Wisconsin case law, ignores the clear intent of the legislature, and defeats the intent of the testator who set forth explicit terms in the will. I would affirm the judgment of the circuit court.
I am authorized to state that Justices Louis J. Ceci and William A. Bablitch join in this dissenting opinion.