
    Elizabeth Charlton v. Stephen Miller, Administrator of Joseph A. Blackburn.
    J. B., being about to marry E. J., made his will as follows: “I give and bequeath to my intended wife E. J. the sum of one thousand dollars, to be paid her within one year after my decease,” and directed the residue of his property to be equally divided among his children. Soon after the marriage the wife abandoned her husband, who, for that reason, in due time procured a divorce. — Held, that the will being positive and unconditional, E. J., after the death of the testator without a revocation of the will, was entitled to the legacy according to the terms of the will.
    Reserved in tbe District Court of Columbiana county.
    The case was originally-brought by the plaintiff in the Probate Court of Columbiana county, where it was transferred to the Court of Common Pleas.
    
      The case is this : On the 13th of March, 1856, Joseph A. Blackburn and the plaintiff (whose name was then Elizabeth Jennings) were engaged to be married. On that day Blackburn made his will, giving to her one thousand dollars, payable one year after his decease, and designating her by her then name of Elizabeth Jennings. On the same day, after making the will, they were married. They lived together until the following November, when the wife abandoned her husband. In October, 1861, Blackburn obtained a divorce from his wife on the ground of willful absence. She applied for alimony in the divorce case, but it was refused by the court. Blackburn died January 17, 1866. His will was duly probated, and the defendant, Miller, was appointed administrator with the will annexed. When the action was brought, more than a year after the decease of the testator, the administrator had settled the estate, leaving in his hands sufficient money to pay the bequest to the plaintiff, but this he refused to do. The plaintiff made no election in any court to take under the will other than the bringing of this action.
    Each of the parties were over fifty years of age at the time of their marriage, and each had children by a former marriage. The will was committed to the custody of the clergyman who performed the marriage ceremony, who moved out of the state, and his residence was unknown to the testator. After the death of Blackburn, the plaintiff' married William Charlton. The will reads as follows:
    “ Know all men hy these presents, that I, Joseph Armstrong Blackburn, of Perry township, Columbiana county, and State of Ohio,, being of sound mind and memory, do make and publish this my last will and testament. 1. I give and bequeath to my intended wife, Elizabeth Jennings, the sum of one thousand dollars, to be paid her by my executor hereinafter mentioned, within one year after my decease. 2. After said sum has been deducted from my estate, I give and bequeath to the children of my first wife, to wit, Louisa J. Wilson, Sarah B. Smith, Mary J. Blackburn, Susan Blackburn, Rebecca A. Blackburn, John A. Blackburn, and Almeda C. Blackburn, an equal share of all the residue of my estate, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease. 3. But if any child or children should be born to me of my. intended wife, Elizabeth Jennings, subsequent to my marriage to her, to such child or children I give and bequeath an equal share of my estate with the children of my first wife as above mentioned, after the one thousand dollars, bequeathed to my wife as above stated, has been taken out of my entire estate; that is, the children of my first wife and the child or children born to me of Elizabeth Jennings after my marriage to her, shall be equal sharers of my entire estate, whether real, personal, or mixed, after the sum before stated bequeathed to my wife, E. Jennings, has been deducted therefrom. 4. I do nominate and appoint Mr. George Burns, Esq., to be the executor of this my last will and testament. In testimony whereof,” etc.
    The Court of Common Pleas held that the plaintiff was not entitled to the legacy claimed by her, and rendered judgment in favor of the defendant. Thereupon the plaintiff filed her petition in error in the District Court to reverse the judgment of the Common Pleas for error in its holding and judgment. In the District Court the case was reserved for decision in the Supreme Court.
    
      Kennett § Ambler, for plaintiff in error:
    All parts of the will must be construed together. Townsend’s Ex’rs v. Townsend, 25 Ohio St. 477.
    The words of the will are clear and unambiguous. The legacy is unconditional.
    A positive and certain disposition of property by will can not be controlled by the reason assigned by the testator for having made such disposition, where the disposition actually made js clear, and there is nothing, beyond the mere reasons assigned, to make doubtful the disposition. 2 Jarman, 744; Parker v. Parker’s Adm’rs, 13 Ohio St. 95.
    Where a right is given in clear and undoubted terms, if standing alone, it can not be controlled by ambiguous. words, or by inferences or arguments from other parts of the instrument, however strong the inference or arguments; but a direct gift or disposition requires as direct a condition, limitation, or qualification as the gift or disposition,in order to control the disposition.
    As to elections: 1st. The election provided in the 43d section of our wills act is for the purpose of securing to a widow her dower and other legal rights, so that they can not be taken from her without her voluntary relinquishment, after her rights are fully explained to her by the court; and there being no such rights to relinquish on the part of the plaintiff', it would be absurd to require her to go through this idle ceremony of having a citation issued and served, and going into court and making her election under the 43d section.
    2d. The plaintiff did not stand in the relation of wife to the testator when this will was made, and she did not occupy the position of widow, entitling her to dower or a distributive share of his estate, when his will was probated, so that she does not now occupy, nor never has, the position requiring the statutory formalities to be gone through in order to make an election, but what it is conceded she has done is an abundant election for every purpose so far as she is concerned.
    As to the effect of the marriage and divorce: "We claim that the terms of-this will are such that if the testator had died after the execution of his will, and without the 'marriage between him and the plaintiff' having been consummated, that she would have been entitled to this legacy, and further, that if the marriage was not necessary to give the legacy, the divorce did not take it from her. Iu other words, that she could not have lost more by the divorce than she gained by the marriage, and that the divorce only stripped .her of such rights as she acquired by the marriage.
    As to revocation of a will: The failure of an individual to make a will is conclusive evidence, in contemplation of law, that he is satisfied with the disposition the law makes of his property, in the absence of a will, and can not be contradicted by any evidence, however strong. The same way when a will is once made, it is conclusive legal evidence that he is satisfied with the disposition made of his property by the will, unless revoked, and no evidence will be received to prove the contrarjn . It is no answer to the plaintiff’s claim for the defendant, Miller, to say that the testator had lost track of the party who had the custody of the will. Because this is one of the cases contemplated by our statute when it provides that ¿ will may be revoked “by.some other writing, signed, attested, and subscribed in the manner provided by this act.” See 39th section of wills act.
    
      J. T. Brooks and Lucian L. Gilbert, for defendant in error:
    I. The bequest in question is to be-regarded as a provision for a widow in the will of her husband, within the meaning of sections 43, 44 of the act relating to wills. S. & G 1623,1624.
    The testator died January 17th, 1866, and the will is to be “ construed by the laws then in force.” Hartshorne v. Rose, 2 Disney, 15. 444.
    The will must be construed in the light of the sm’rouuding circumstances, and by the intention of testator. Williams v. Veach, 17 Ohio St. 180; Worman v. Teegarden, 2 Ohio St. 382; Pruden v. Pruden, 14 Ohio St. 256; Palmer v. Yarrington, 1 Ohio St. 259.
    As to the effect of the divorce: The divorce severed the relationship of husband and wife, and the effect is the same as if she had died before the testator, while yet his wife. She is not his widow, and only as such could she take the legacy. She must, as his widow, elect to take it as a substitute for her dower, which she must release. She could not make the election. By her own wrongful act, her right to dower and to make the election was defeated. Losing dower, she lost the right to' ask thsP ■which was a substitute for it. The shadow fell with the substance. • The legacy is to purchase her ¡dower, and she has none to sell. No right to the legacy vested in her. It could only vest in her as the widow of the testator, Avhich she is not. Even at common law, we claim the same result would follow; the legacy being intended as in lieu of dower, it would only vest in her and take effect upon performance of the condition precedent — i. e., the relinquishment of dower, a condition which she could not perform, having none to relinquish; and this leads us to our second point.
    II. It is a legacy upon condition expressed in the will itself that she should become his wife and widow, and as such relinquish her dower in his estate.
    No set form of words are necessary to make a condition. The intention of the testator is the only test, and the same words may make a condition, either precedent or subsequent, according to the nature of the thing and the intent of the testator.
    "We claim that the testator in this will was making a provision for the plaintiff as his widow, and in lieu of her dower, -whether tested by the common law or by the statute. By the common law, because he made the will only to provide against the contingency of the plaintiff becoming his widow, and because his disposition of his entire estate to others, to be diminished only to the extent- of the legacy to her, is manifestly inconsistent with her right to retain or take other poi’tions of it for her dower.
    If, then, he intended this legacy as a provision for her as his widow and in lieu of dower, it follows as a necessary part of the condition that she should become his wife and be such at his death; otherwise, she could not give the consideration required of her for the legacy. By her act and the act of the testator the full performance of the condition was rendered impossible, and the legacy never vested.
    III. The divorce revoked the bequest.
    1. By reason of the presumed intention of the testator.
    An intention to revoke a devise is to be presumed from an act done by the testator inconsistent with it. Walton v. Walton, 7 J. C. 263.
    2. By act of law. Tyler on Inf. & Cor. 293, 571; Charraud v. Charraud, 1 N. Y. Leg. Obs. 134; Clark v. Lott, 11 Ill. 144.
   Day, J.

Neither the validity of the will nor its proper probate is disputed ; nor is it claimed that it was ever revoked in any manner provided by the statute. But it is claimed that, properly construed, it never took effect in favor of the plaintiff, or was constructively revoked by the divorce procured by the testator.- The principal question, then, is : What is the true meaning of the will as written, when read in the light of the circumstances that suri-ounded the testator when it was made ?

Undoubtedly, the contemplated marriage of the parties, and a desire to make a provision for the plaintiff as his wife, were prompting causes of the will; but whether these were the only motives of the testator we can not tell. If so, he might easily have made the bequest upon the conditions that the legatee became his wife and survived him as his widow ; but he chose to leave these conditions, if contemplated by him at all, to be inferred only from words of description that he gave to his legatee as being his “ wife ” or “intended wife.” The bequest is made in absolute and unconditional terms, so far as expressed in the language of the will, and can not be evaded or overcome by more argumentative inferences drawn from words of the will not used for any such purpose. Had the testator died before the marriage contemplated, the right of the plaintiff’ to the bequest can not be doubted, for the marriage was not made a condition precedent to the legacy. Nor is the case -different if, after marriage, she ceases to be his wife, for the legacy is not conditioned upon her survivorship as his widow. If, then, her right to the legacy does not depend upon the marriage, it can not be lost by the divorce, for she can lose no more by the divorce than she gained by the marriage.

By the.divorce, under the provisions of the statute, she lost her right of dower; and, being divorced, she was not the testator’s widow at his decease. Not being entitled to dower, and not being the testator’s widow, she had no right of election, as provided by statute for widows who are entitled to either dower or a provision in a will in lieu of dower, but was left alone to whatever rights she "had under the will. The procuring of a divorce by the testator does not necessarily imply a revocation of the will, for it is entirely consistent with an intent to annul her right of dower only, and her consequent right of election, thus leaving her to take under the absolute and unconditional provisions of the will. The probable correctness of this view is strengthened by the fact that while he might easily have expressly revoked, the will, though not in his possession, and wherever it might be, either before or after the divorce, for some reason, satisfactory to himself, it was never done. To defeat the bequest, we must then not only add to the will conditions that are neither expressed nor necessarily implied therein, but must rebut the presumption against any intended revocation of the will arising from the testator’s acquiescence therein for nearly five years after he was abandoned by bis wife before he obtained a divorce, and more than four years after the divorce before his death. It follows that the judgment of the Court of Common Pleas must be reversed, and the cause will be remanded for further proceedings.

Judgment accordingly.

Scott, Chief Judge, Wright, Johnson, and Ashbürn, JJ., concurred.  