opinion: Willard J. LUFF, Appellant, v. Ruth K. LUFF, Appellee.
  No. 19311.
  United States Court of Appeals District of Columbia Circuit.
  Argued Sept. 17, 1965.
  Decided Feb. 4, 1966.
  Petition for Rehearing En Banc Denied March 24, 1966.
  Leventhal, Circuit Judge, dissented.
  Mr. R. Sidney Johnson, Washington, D. C., for appellant.
  Messrs. John W. Jackson and Darryl L. Wyland, Washington, D. C., for ap-pellee.
  Before Fahy, McGowan and Leven-thal, Circuit Judges.
  FAHY, Circuit Judge:
  The question is whether the last will and testament of Morris F. Luff, deceased, of whom appellant, Willard J. Luff, is a surviving brother and one of several heirs at law, was impliedly revoked. The will, dated April 7,1953, provided that testator’s entire estate should go to Ruth K. Luff, appellee, who then was his wife. Thereafter they separated. Some five years after the separation she sued for and obtained an absolute divorce upon the ground of five years consecutive separation without cohabitation. A property settlement agreement entered into between the parties during the pendency of the divorce proceeding was made a part of the decree of divorce. There was no child, and neither remarried.
  The will was found in testator’s apartment after his death. At his request it had been sent to him by his former wife after their divorce. She offered the will for probate. Appellant filed a caveat, and the issue as to the validity of the will came on for trial before judge and jury. Appellant relied entirely upon the divorce and property settlement as impliedly revoking the will. Appellee introduced considerable testimony tending to show that decedent should not be held to have intended to revoke the will. • At the close of all • the evidence the motion of appellee for a directed verdict in her favor was granted, the will thus being given effect. We reverse, being of opinion that the divorce with property settlement revoked the will by implication of law. In so holding we follow the majority rule, which we think has the support of better reasoning.
  We discuss first whether our Gode provisions respecting revocation, in effect during the relevant times, set forth in the margin, allow revocation implied in law. At one time these provisions were thought not to do so. See McGowan v. Elroy, 28 App.D.C. 188, and Morris v. Foster, 51 App.D.C. 238, 278 F. 321, cert. denied, 259 U.S. 582, 42 S.Ct. 586, 66 L.Ed. 1074. However, in Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, decided in 1945 with an opinion by Chief Justice Groner, joined by Associate Justices Justin Miller and Edgerton, this court reconsidered and departed from Morris v. Foster. Following the common law the court held that where an unmarried testator, without child by a former marriage, executed a will which contained no provision for any child of a subsequent marriage, and remarried, followed by birth of a child, the will was impliedly revoked. The basis for the doctrine thus approved is that such change in the testator’s condition or circumstances gives rise to a legal presumption of an intention inconsistent with a previously executed will.
  Appellee contends, however, that the common law did not extend to an implied revocation by reason of divorce with a property settlement; and we find no case in the early common law, when divorce was rare, contrary to this contention. Moreover, courts have not infrequently stated that the principal grounds for implied revocation at common law were a subsequent marriage of a woman or a subsequent marriage of a man with birth of a child. But this does not end our inquiry.
  The doctrine of implied revocation due to change of condition or circumstances came to be recognized in a number of states by statute. Many state statutes, after specifying as does our Code the usual means of revoking a will, swpra note 1, go on to provide, “but nothing in this section will prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” While this language did not appear in our Code when this case arose, nevertheless, as we have seen, this court in Pascucci v. Alsop read the common law doctrine into our decisional law. It is urged, however, that since our Code did not contain explicit statutory authorization of revocation by implication the circumstances under which this occurred in this jurisdiction must be limited to those found in early common law decisions. We do not agree. Once the doctrine was accepted, as in Pascucci v. Alsop, we think it should not be limited to the particular circumstances which gave rise to it, if at this period of our history changes in marital relations in other respects, here divorce and property settlement, which were rarely known at the time of the early cases, bring the situation within the rationale of the doctrine. Accord, Rankin v. McDearmon, 38 Tenn.App. 160, 270 S.W.2d 660. The doctrine itself, as distinct from the occasions which originally gave rise to it, is not limited in its application solely to those occasions. And where implied revocation has been recognized, and the circumstances of its application left to the courts to decide, as here, we turn to decisional and statutory law in other jurisdictions for guidance as to whether a divorce with property settlement is such change in condition or circumstances as brings the doctrine into play.
  The trend of statutory law in other jurisdictions is to include changes other than such as were present in Pascucci, including marriage alone and divorce alone. And the weight of decisional law is now to the effect that when a married man makes provision in his will for his wife, and is thereafter divorced, with a property settlement between them, such change in the condition and circumstances of the parties impliedly revokes the previously executed will in favor of the wife. The cases are numerous. While some are of an early period in our history, the weight of authority persists to the present time. Lansing v. Haynes, 95 Mich. 16, 54 N.W. 699; Wirth v. Wirth, 149 Mich. 687, 113 N.W. 306; In re Hall’s Estate, 106 Minn. 502, 119 N.W. 219, 20 L.R.A.,N.S., 1073; In re Battis, 143 Wis. 234, 126 N.W. 9; In re Martin’s Estate, 109 Neb. 289, 190 N.W, 872; Younker v. Johnson, 160 Ohio St. 409, 116 N.E.2d 715; Caswell v. Kent, 158 Me. 493, 186 A.2d 581. In Caswell v. Kent, decided in 1962, it is stated:
  The majority rule clearly rests on the assumption based upon common knowledge and experience that it is so rare and so unusual for a testator under these circumstances [divorce and property settlement] to desire or intend that his divorced spouse should benefit further under his will, that it is not improper or unreasonable to require that such a testator make that extraordinary desire and intention manifest by a formal republication of his will or by the execution of a new will.
  Caswell v. Kent, supra at 582-583.
  In a Memorandum Opinion of the late Chief Justice Bolitha J. Laws of our District Court in Estate of Hale Plahn Daugherty, Admin. #69,504, cited at 1 Mersch, Probate Practice in the District of Columbia § 672 (2d ed. 1952), it is said:
  “It appears to be the weight of authority that a divorce coupled with a property settlement would revoke a will previously made. Such a settlement is said to be plainly inconsistent with the provisions of the will.”
  Thus we find support for our position that we should not limit application of the doctrine to such cases as Pascucci, but appropriately should apply it in the circumstances of this case.
  Respectable authority to the contrary is not lacking. Hertrais v. Moore, 325 Mass. 57, 88 N.E.2d 909; and see Baacke v. Baacke, 50 Neb. 18, 69 N.W. 303; Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695; Codner v. Caldwell, 156 Ohio St. 197, 101 N.E.2d 901. The reasoning of the contrary rule is stated as follows by the Massachusetts court in Hertrais v. Moore, 88 N.E.2d at 912:
  It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes, permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a testator’s actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. [citations omitted] If the changes relied upon by the respondents were held to achieve a revocation implied in law, other changes can be imagined which with equal plausibility might be urged to have similar effect. Persons who have drawn wills or who are to draw wills are not now to be exposed to the risk that, in the present circumstances and perhaps others, the courts might decree revocation notwithstanding that such persons do not avail themselves of the easy means afforded by statute for accomplishing revocation by their own intentional acts.
  The commentators recognize the division of authority; but the majority support the position we now take. Mersch refers to the majority view as that of the “American courts.”
  The doctrine of implied revocation is so ancient and widespread that the question simply comes down to the nature of the changed condition or circumstances which will bring it into operation. This court in Pascucci applied it to a subsequent marriage and birth of a child. We apply it to a subsequent divorce coupled with a property settlement, because that also creates such a change both in status and responsibility as to raise the presumption of change in intention which lies at the basis of the doctrine. A will in favor of a wife is a means by which a husband makes provision for her as wife. When there is a divorce and a formally agreed property settlement, as here, both the wifely status and the testamentary provision are replaced by such changed condition and circumstances that the law may well imply an intention no longer to give effect to the provision for the wife contained in the will.
  The intention to revoke is imputed and conclusive. It may not be overcome by evidence adduced subsequent to the death of the testator and then relied upon as indicative of an intention that the will should be effective. Inquiry into the state of mind of the testator is confined to that imputed to him by the divorce and property settlement. Lansing v. Haynes, supra; Wirth v. Wirth, supra; In re Battis, supra; In re Martin’s Estate, supra; Caswell v. Kent, supra. Contra, Card v. Alexander, 48 Conn. 492; In re Jones’ Estate, 211 Pa. 364, 60 A. 915, 69 L.R.A. 940; In re Arnold’s Estate, 60 Nev. 376, 110 P.2d 204.
  At common law certain changes in the condition and circumstances of the testator worked a revocation by implication, and it was formerly held that this was prima facie only, and open to rebuttal by proof that the testator intended his will to remain, notwithstanding the change in his circumstances. The rule, however, by all modern authorities, is that the presumption of law arising from the changed conditions is conclusive, and no evidence is admissible to rebut it. * * *
  In re Hall’s Estate, 106 Minn. 502, 119 N.W. 219, 220. This is the sounder rule, illustrated by the present case. There was evidence of strained relations between testator and appellant, one of his heirs. It was also urged that when at the divorced husband’s request his former wife sent the will to him he kept it in a bureau drawer in his apartment where it was found after his death, and that this indicated an intention not to revoke it. Testator is not available to give his version of either of these matters. He has a sister and other brothers besides appellant; and he may have asked his former wife to send the will to him so that it would no longer be in her control. He may have retained it undestroyed as a memento of happier days, or because of indecision. It is safer to rely upon the divorce and carefully composed adjustment of property between the parties, by which the former husband was relieved of further legal obligation to his former wife with respect to his property. While he remained of course free to make additional provision for her if he desired to do so the law should require this to be done anew in a manner provided by statute for valid testamentary disposition.
  Reversed and remanded for further proceedings not inconsistent with this opinion.
  . This agreement set forth in some detail a division of particular items of personal property and provided that from the monies in the hands of the wife she would pay the husband the sum of $7,000 and give him the deed to a cooperative apartment. The agreement also provided that the wife “shall not claim any interest as Wife, widow, heir, next of kin or successor” in the property of the husband and that she would execute any papers necessary or convenient to enable him, his heirs, executors, administrators or assigns “to hold or dispose of his property, free and clear of all rights of hers which she might have had except for this covenant.”
  . D.C. Code § 19-103: Form of will — Witnesses — Alteration—Revocation.
  All wills and testaments shall be in writing and signed by the testator, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said testator by at least two credible witnesses, or else they shall be utterly void and of no effect; and, moreover, no devise or bequest, or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same by the testator himself or in his presence and by his direction and consent; but all devises and bequests shall remain and continue in force until the same be burned, canceled, torn, or obliterated by the testator or by his direction in the manner aforesaid, or unless the same be altered or revoked by some other will, testament, or codicil in writing, or other writing of the testator signed in the presence of at least two witnesses attesting the same, any former law or usage to the contrary notwithstanding. (Mar. 3, 1901, 31 Stat. 1433, ch. 854, § 1626.) (Repealed by Pub.L. No. 183, 89th Cong., 1st Sess., § 8. And see n. 6, infra.)
  . Not mentioned in the opinion was the earlier one of Mr. Justice Barnard of the Supreme Court of the District of Columbia, Estate of Mary D. Heyl, 30 Wash. L.Rep. 296 (1902), holding that a change in the circumstances of a testatrix, by the birth of a child, by implication revoked her will executed prior to the birth.
  . See Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 880-881 (I960)-.
  . Id. at 881, n. 600.
  . However, on January 1, 1966, Pub.L. No. 183, 89th Cong., 1st Sess. (Sept. 14, 1965) took effect and Title 18, D.C.Code, § 109, (replacing the former § 19-103 and other provisions), does now explicitly include the words authorizing revocation “by implication of law.” S.Rep.No. 612, 89th Cong., 1st Sess. 10-11 (1965); H.R. Rep. No. 235, 89th Cong., 1st Sess. 8-9 (1965).
  . The English Wills Act of 1837 by Article XIX provides that “no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances,” but simultaneously by Article XVIII the Act provides that “every will made by a man or woman shall be revoked by his or her marriage,” with an exception not pertinent to our discussion. Wills Act, 1837, 7 Will. 4 and 1 Viet., c. 26, §§ 19, 20 at 3 Jarman, Wills App. B, at p. 2085 (8th ed. 1951). For state statutes see Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 885 (1960) and the Model Probate Code § 53.
  . “In the case at bar,” the Chief Justice continued, “as there was neither a general property settlement nor a transfer of any part of the husband’s estate to the wife the reasoning of the cases mentioned ■ does not apply.”
  . 2 Page, Wills § 21.101 (Bowe-Parker Revision 1960); Atkinson, Wills § 85, at 431 (2d ed. 1953); Annot., 18 A.L.R.2d 697, 705-710 (1951); Thompson, Wills § 176 (3d ed. 1947); Mersch, “Implied Revocation of Wills Revised in the District of Columbia,” 33 Geo.L.J. 182 (1945); Durfee, “Revocation of Wills by Subsequent Change in the Conditions or Circumstances of the Testator,” 40 Mich. L.Rev. 406, 412-413 (1942); Note, 52 Harv.L.Rev. 332 (1938); Evans, “Testamentary Revocation by Divorce,” 24 Ky. L.J. 1 (1935); Graunke and Beuscher, “The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator,” 5 WisXJEtev. 387 (1930).
  . Mersch, op. oil. supra note 9, 188-189.
  . Divorce itself is not enough. See text and cases referred to in 2 Page, op. oit. supra, note 9, at 521-522.