general rule, and if there are any exceptions, they must depend on the expression or unavoidable implication of a contrary intent of the testator." In Vance's Estate, 141 Pa. 201, 213, 12 L.R.A. 227, 23 Am. St. Rep. 267, 21 Atl. 645, we said: "Law must have a settled and uniform rule, and it is that, as to the provisions in a will for legacies subordinate to a life interest in the widow and contingent upon her death, or payment of which is postponed till then, her election to take against the will is equivalent to her death." In Woodburn's Estate, 151 Pa. 586, 589, 25 Atl. 145, we determined that this cardinal rule governed where, as in the case at bar, the testator gave his widow, for life, "not the income of one third, but one third of the income of the whole" of his estate. We there said: "To ascertain and secure such third the whole estate had to be kept together, and such was undoubtedly the testator's intention." The language last quoted is applicable here. It is apparent from a reading of the will that the testator's paramount intention was to create a trust during the life of his widow, so that she might enjoy the income from, not one third of his estate, but one third of the income from his whole estate, and that, after thus providing for his wife, the primary object he had in view was to benefit his children. In other words, the testator intended to leave his residuary estate, subject only to his sister-in-law's annuity, for the benefit of his wife and children, the former to receive one third of the income for her life, and each of the latter a like proportion for the same period. When his widow's interest should terminate, he intended his two children to take the whole principal, the son's share being absolute, and the daughter's continuing in trust; and it seems evident that he postponed this distribution until his widow's death for the reason that he desired the entire estate held intact, to secure her one third of the income therefrom, rather than to set aside one third of the principal for her benefit. Finally, the alternate remainders, after the devises to his wife and children, are substitutionary in character, and inserted to prevent the occurrence of a lapse should either or both of the children die during the continuance of the trust created for the purpose just indicated. This being the evident scheme of the will, and the plan having been interfered with by the widow's election to take her share under the intestate laws, the acceleration of the remainder interests given to testator's children would carry out his principal intent, and also adhere to his general plan better than con tinuing the trust so that the secondary objects of his bounty might be afforded an opportunity to derive a possible benefit in the future. In a case like the one before us the effort must be to find and carry out the testator's chief intent with a minimum disturbance of the general plan of the will. After his wife the testator's children were the natural and primary objects of his bounty, not their issue, still less nephews and nieces or their issue, and the alternative provisions for others after the testator's children were undoubtedly intended as substitutionary, in case the latter died during the life of their mother, should she take under the will; but, as said by Mr. Justice Mitchell, in Vance's Estate, 141 Pa. p. 209, 12 L.R.A. 227, 23 Am. St. Rep. 267, 21 Atl. 643, supra, a testator is presumed to know that a widow's statutory rights are paramount, and that she may take against his will; to which we now add that a testator is presumed to know also the general rule that the election of a widow to take under the intestate laws is equivalent to her death, and that, unless his will plainly indicates a contrary intent, remainders are accelerated accordingly. Of course, an intent that there shall be no acceleration may be shown by inevitable implication, as, for instance, where the will itself fixes a definite time for distribution independently of the widow's death, or expressly provides as to the effect of her refusal to take thereunder (Reighard's Estate, 253 Pa. 43, 53, 97 Atl. 1044); or where a trust is created not simply to guard the widow's life interest, but also for the benefit of a third party other than either the widow or remaindermen (Young's Appeal, 108 Pa. 17, 22); or, again, where during the life of a widow the whole income is given to her and another, the latter of whom, for apparent reasons, the testator would specially desire to enjoy his bounty to the full extent indicated,-a mother, for example,and, after the life estate of the wife, remainders are limited to others in addition to the mother, so that in case of acceleration the income intended for the latter would be materially diminished during, in all probability, an appreciable period of time (Portuondo's Estate, 185 Pa. 472, 39 Atl. 1105); or where the contingency upon which the remaindermen are to take is such that in the nature of things the persons entitled can be ascertained only by the physical death of the widow; and perhaps other instances might be cited. Some of these exceptions, and the Pennsylvania cases dealing therewith, are well considered by Judge Porter, of the superior court, in a recent opinion handed down in Wyllner's Estate, Estate, supra); and the fact that the re- 65 Pa. Super. Ct. 396, a case much like the until the actual death of his widow, but The decree is reversed, and the record re- Annotation-Acceleration of remainder by renunciation of life estate. The question above stated is covered by annotations in 18 L.R.A. (N.S.) 272, and L.R.A.1915A, 671, to which the present note is supplemental. The principle of acceleration of the vesting of a remainder by the premature termination of the preceding estate rests upon the testamentary intention, and will be applied only when it promotes that intention, and never when it defeats it. When, therefore, it appears that possession of the remaindermen is postponed solely for the purpose of letting in the life estate, it is presumably the intention of the testator that a renunciation of the life estate is equivalent to its termination by the death of the life tenant, and the beneficiaries entitled in remainder enter into enjoyment at once. Roe v. Doe (1914) 5 Boyce (Del.) 545, 93 Atl. 373; O'Rear v. Bogie (1914) 157 Ky. 666, 163 S. W. 1107; Adams v. Legroo (1913) 111 Me. 302, 89 Atl. 63; Davis v. Hilliard (1916) 129 Md. 348, 99 Atl. 420; Cotton v. Fletcher (1914) 77 N. H. 216, 90 Atl. 510; Kirchner v. Kirchner (1911) 71 Misc. 57, 127 N. Y. Supp. 399; Meek v. Trotter (1915) 133 Tenn. 145, 180 S. W. 176. But where the intention of the testator is that the remainder shall not take effect until the expiration of the life of the prior donee, the remainder will not be The contrary intention which will pre- In the following cases no contrary intention on the part of the testator was discoverable which would prevent the acceleration of the gift over upon the life tenant's renunciation of the precedent estate: Roe v. Doe (1914) 5 Boyce (Del.) 545, 93 Atl. 373, where testator gave all his estate to his wife for life and after her death to "my then living children (or in case of their death to their legal representatives), share and share alike;" Northern Trust Co. v. Wheaton (1911) 249 Ill. 606, 34 L.R.A. (N.S.) 1150, 94 N. E. 980, where testator gave his en 2 Renunciation of the life estate will not defeat a contingent remainder for want of a precedent estate to support it. Roe v. Doe (Del.) supra; Wakefield v. Wakefield (1912) 256 Ill. 296, 100 N. E. 275; Ann. Cas. 1913E, 414; O'Rear v. Bogie (1914) 157 Ky. 666, 163 S. W. 1107. But the general rule that a gift over will be accelerated by a renunciation of the life estate will not be applied where it is apparent that the event producing the acceleration of the time for vesting the remainder in possession is not contemplated by the will, and the result produced would be contrary to the express intent of the creator of the estates. Cases of this kind, other than those set forth in the note in 18 L.R.A. (N.S.) 272, are Fowler v. Samuel (1912) 257 Ill. 30, 100 N. E. 143, Ann. Cas. 1914A, 854, and Cummings v. Hamilton (1906) 220 Ill. 480, 77 N. E. 264, which are set forth in the note in L.R.A.1915A, at page 672. tire estate to be held in trust during the | 176, where a testator gave his wife all lifetime of his widow to pay her an an- of his real estate during her life and at nuity and at her death to distribute the her death gave various parcels thereof remainder among certain persons to divers persons, with provisos that if named; O'Rear v. Bogie (1914) 157 they should die "without bodily heirs Ky. 666, 163 S. W. 1107, where testator the remainder interest in said property gave his wife the residue of his per- shall" vest in another person. sonal property and all of his real estate for and during her natural life, and a further life estate in the same property to a brother should he survive the testator and widow, and further directed that upon the death of his brother and wife, "or in the event they should be dead at my death," the remainder of 'the property given them and not otherwise disposed of by the will should go to "the descendants that are then living of my brothers and sisters as if I had died intestate," it being apparent that the testator did not have in mind providing for such descendants of his brothers and sisters as should survive a certain period, or the keeping of his estate together until a certain period and the distribution of a share to those who might be then living of the descendants of his brothers and sisters, but that what he had in mind was simply a provision for his wife and his surviving brother, and that, subject to this, he desired the estate to go to the descendants of his other brothers and sisters as if he had died intestate; Adams v. Legroo (1913) 111 Me. 302, 89 Atl. 63, where testatrix gave a sum of money in trust to pay her husband the income therefrom and so much of the principal as should be necessary for his comfortable maintenance and support, and at his decease, "if any of said sum remained unexpended," to certain persons named; Davis v. Hilliard (1916) 129 Md. 348, 99 Atl. 420, where testator gave a house and lot and certain bank stock to his wife for and during her life and upon her death directed that it should be sold and the proceeds paid to his grandchilren, share and share alike; Kirchner v. Kirchner (1911) 71 Misc. 57, 127 N. Y. Supp. 399, where testator, after making certain bequests, gave the rest of his Sequestration of renounced provision. estate in trust to pay one third of the As stated in the earlier note, the sonet income to the widow during her life called equitable doctrine that a reand the remaining two thirds to testa-nounced testamentary provision will be tor's seventeen nephews and nieces, and after the death of the widow gave a pecuniary legacy to two legatees and a certain piece of real estate to others, and the remainder of the estate to his seventeen nephews and nieces;" Meek v. Trotter (1915) 133 Tenn. 145, 180 S. W. So, where the effect of the widow's election to take the provision made for her by law leaves the estate in such a condition that the remaining provisions of the will cannot be enforced consistent-⚫ ly with the intent of the testator there will be no acceleration of the remainder, but the provisions of the will may be disregarded and the remainder of the estate distributed under the Statute of Descent and Distributions the same as if no will had been made. Fennell v. Fennell (1909) 80 Kan. 730, 106 Pac. 1038, 18 Ann. Cas. 471, on rehearing in (1910) 81 Kan. 642, 106 Pac. 1040. And there will be no acceleration where provisions for others continue the trust from the income of which provision for the life beneficiary was made. Reighard's Estate (1916) 253 Pa. 43, 97 Atl. 1044. sequestered for the benefit of legatees or devisees whose portion has been diminished as a result of the election of the widow against the provisions of the will is in reality a form of the rule that the presumed intention of the testator that a gift over shall take effect upon the termination of the particular estate or interest, however such termination is effected, must yield to a manifest intention to the contrary, the manifest intention in cases presenting this aspect of the question being deduced from the scheme of distribution created by the testator, which it is presumed he desires to be given effect so far as possible. The right to be accelerated is subject to the right to have equalization made by way of contribution from others in the same class. Meek v. Trotter (Tenn.) supra. That sequestration of the renounced provision will take place for the benefit of specific or general legatees or devisees newal after divorce. This action was brought to recover dam1. That the first promise of marriage ocages for the breach of a promise of marcurred while the promisor had a wife liv-riage. The complaint averred that on the ing, and was to be performed when a divorce was secured, does not prevent a suit for its breach, if it was renewed after the impediments were removed. For other cases, see Breach of Promise, II. in Dig. 1-52 N. S. Evidence- marriage promise -marital relations. Contract writing 4th day of November, 1912, plaintiff and defendant, both being in all respects competent to enter in the marriage state, agreed to marry, and that defendant promised to marry plaintiff; that from time to time thereafter he renewed this promise, until finally, on the 13th day of August, 1913, he violated his promise, and refused either then or thereafter to marry plaintiff. Trial was had before a jury, which gave its verdict in the sum of $10,000 for plaintiff. From the judgment which followed, and from the order denying defendant's motion for a new trial, this appeal has been taken. The evidence on behalf of plaintiff established that, when she was a girl a little over fifteen years of age and defendant was conducting a hotel in Portland, Oregon, she was employed therein as housekeeper or For other cases, see Contracts, I. e, 1, in manager. Defendant represented to her Dig. 1-52 N. S. A (September 17, 1917.) PPEAL by defendant from a judgment of the Superior Court for San Diego County in favor of plaintiff, and from an order denying a motion for new trial, in an Note. As to validity of agreement to marry where either of the parties is already married, see annotation following this case, post, 68. that he was unmarried, and on his promise married, but that his wife had begun an plaintiff with him, and engaged in the hotel | lived with her and held her out as his wife, business in San Diego and in other places. and had continued in this relationship and This relationship between them continued, intercourse under frequent and repeated saving that in California the defendant rep- promises to make her an "honest woman" resented her to be his wife; they held them- by marrying her. selves out to the world as husband and wife, and acted in all respects as husband and wife. From time to time he renewed his promise of marriage, naming in each instance the date when the marriage would take place. As the time arrived he would put her off by fixing another date. She had entered into this relationship with him in childhood; it had continued ever since; she felt unable to break away; she hoped each time he would fulfil his promise; but each time he had disappointed her. In 1912 he told her "not to worry; that everything would be all right; that they would get married in three months' time." Plaintiff's testimony to this effect is corroborated by a witness who was present at this conversation. Finally, in August, 1913, when plaintiff was confined to her bed, defendant said to her in the presence of the same witness: "Although I have promised to marry you several times, I have no such intentions of doing so, and I never will; you and my people can go to hell, as far as I am concerned. Mebel here is a friend to both of us, and I suppose she is wise enough to keep her mouth shut." Thereafter plaintiff brought this action. Appellant contends that, as the original promise of marriage was given by defendant at the time defendant was a married man, and must necessarily rest for its fulfilment upon the basic consideration of securing a divorce, the plaintiff's whole case must fall to the ground. It is unquestionably true that a promise given under such circumstances is against the manifest policy of the law, and therefore wholly void. Noice v. Brown, 39 N. J. L. 133, 23 Am. Rep. 213; Paddock v. Robinson, 63 Ill. 99, 14 Am. Rep. 112. Nor will this court in the slightest modify so salutary a principle. But the case here is broadly differentiated from the cases above cited and others so holding. It is differentiated in this, that defendant's promise was renewed years after the divorce, years after his former wife had married again, and when there was no obstacle, either in the law or in good morals, to prevent him from entering anew into the marriage state, and at a time when his course of conduct toward plaintiff, at least from the moral aspect, strongly demanded that he not only should make such a promise, but should keep it; for the evidence which was presented to the jury showed that this man had seduced this girl child of fifteen years under promise of marriage, had taken her thereafter to California as his wife, had In this connection may be noted appellant's next objection to the admission of the evidence of illicit sexual intercourse between plaintiff and defendant. It unquestionably is the rule that in an action for breach of promise of marriage, where the seduction of the plaintiff is not alleged to enhance the damages, evidence of illicit intercourse is not admissible. Lanigan v. Neely, 4 Cal. App. 766, 89 Pac. 441; Felger v. Etzell, 75 Ind. 417; Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925; Lauer v. Banning, 140 Iowa, 319, 118 N. W. 446. But the very foundation of these decisions is removed from the case at bar. In those cases where the principle has been applied, the intercourse has been "consummated in the strictest privacy and secrecy and is known only to the parties themselves," and "evidence of such intercourse can have no possible tendency to prove the existence of a promise of marriage." But here, however secretly this intercourse began, defendant entered into an assumption of marital rights and duties and obligations, and held out this plaintiff as his wife. Where a man has held a woman out to be his wife, it certainly is no strained inference from the evidence establishing this to say that it has a tendency at least to show that he had promised to marry her. It is not even a modification of the rule which we have been discussing to declare that, when a man in effect announces to the world that he is married to a woman, a reasonable inference may be drawn that at least he has promised to marry her. The defendant specially pleaded the defense of plaintiff's unchastity, as contemplated by § 62 of the Civil Code. Of course, her unchaste conduct with defendant himself was not a defense. Her asserted lack of continence, so far as defendant himself was concerned, rested upon evidence circumstantial in its nature, and upon testimony touching plaintiff's general reputation for lack of chastity; but the jury's determination was against this defense. Section 1624, subd. 3, Civil Code, provides that a contract with mutual promises to marry may be oral. Section 360 of the Code of Civil Procedure, providing that no acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of the Statute of Limitations, unless "the same is contained in some writing, signed by the party to be charged thereby," has no reference to promises such as it is in evi |