"The Last Will and Testament of Samuel Collins, of Lima, Ohio.

"In the name of the Benevolent Father of All: I, Samuel Collins, of Lima, Ohio, being of sound and disposing mind and memory, do publish this my last will and testament, revoking any and all wills and codicils by me at any time heretofore made.

"Item 1. I desire and order the payment of all just debts and funeral expenses.

"Item 2. I desire that the real estate on which is situated the brick block at the northwest corner of the public square, in Lima, Ohio, now owned by me, and my farm of eighty (80) acres in section eight (8) Perry township, Allen county, Ohio, be not sold for a period of ten (10) years after my death. I do this believing that it will be for the best interests of my heirs and legatees to have this requirement. The residue of my real estate to be sold or held as my executors or the court may determine.

"Item 3. I desire that my executors file in the probate court of Allen county, Ohio, yearly, a full account of their receipts and disbursements.

"Item 4. I give, devise, and bequeath, subject to each and all conditions hereinafter set forth, to my great-granddaughter, Dorothy Collins, daughter of my grandson, the late Doctor Charles Collins, in the event of her attaining the full age of eighteen (18) years, two thousand ($2,000) dollars. This payment is subject as to the time of payment and upon the conditions set forth at the close of this item. This bequest is to be and shall be null and void and of no effect, and as if the same had not been made, should said Dorothy Collins, not live to the full age of eighteen (18) years. Should she live to be twenty-one (21) years of age, then upon the same terms I give, devise and bequeath to her, and she shall be paid from my estate, the additional sum of three thousand dollars ($3,000), subject as to the time of payment as set forth at the

close of this item. This bequest to be null and void and of no effect should said Dorothy Collins not live to the full age of twenty-one (21) years. As a part of this item and standing on equal terms with the first part of this item, I give, devise and bequeath to my grandson, Leland Samuel Collins, son of my son, Perry C. Collins, in case he shall live and arrive at the full age of twenty-one (21) years, to be paid from my estate, the sum of five thousand dollars ($5,000). This payment is subject as to the time of payment as hereafter set forth at the close of this item. This bequest to be null and void and of no effect should Leland Samuel Collins not live to the full age of twentyone (21) years. The payment of each of the above bequests shall not be enforced when due to the detriment of the estate, and of this fact the executors and the probate court of Allen county, Ohio, shall be the judge, and no such payments shall be made until such time as my executors and said court determine they shall be made, all to the best interests of my estate.

"Item 5. I charge my executors to pay, and I bequeath to my niece Sophia Miller, twenty-five ($25) dollars semiannually payable each April 1st and October 1st for a period of ten (10) years from my death, should she be living so long; her death shall determine this bequest; and a like sum under like conditions to my niece Martha Collins, payment of these sums to be made to Rachael Ream as trustee for them, and my executors shall at each payment, pay to said trustee ten dollars (10) to pay her for her trouble.

"Item 6. In order to, in so far as possible, equalize my sons Daniel Collins and Perry C. Collins, I give, devise and bequeath to my son Daniel Collins the sum of twentythree hundred twenty-seven and 84100 dollars ($2,327.84). The justice of this may be seen in the receipt of Perry C. Collins to be found in my papers.

"Item 7. I do hereby bequeath to the trustees of Woodlawn Cemetery Association the sum of five hundred ($500) dollars to be paid by my executors, and the same to be held in trust by the said trustees, by them placed on interest, and the interest thereon expended in the care and preservation of my vault now situated in Woodlawn Cemetery.

"Item 8. I give, devise and bequeath all and singular, my property, both real and personal (subject to the payment of my debts and the above bequests, that may under the conditions become due and payable, and subject to the conditions of death and survivorship, hereafter set forth), absolutely and in fee simple, without other charge or limitations, to my son Daniel Collins and my son Perry C. Collins, each one-half (4), provided:

"Item 9. In case of the death of my son Daniel Collins prior to my death and he die without issue living the share thus above devised and bequeathed to him, I devise and bequeath to my son Perry C. Collins or in the event of his death prior to my death such share of Daniel Collins shall pass to and be vested in Mr. Walter B. Richie of Lima, Ohio, as trustee and for the benefit of and belong to the issue of, if living, of my son Perry C. Collins, to be paid over when said issue becomes twenty-one (21) years of age.

"Item 10. In case of the death of my said son Perry C. Collins prior to my death, then I devise and bequeath the share thus above devised and bequeathed to him, to Mr. Walter B. Richie of Lima, Ohio, as trustee, to be held for the benefit of my grandson Leland Samuel Collins, in case he shall live and arrive at the age of twenty-one (21) years, at which time it shall be paid to him, and in case of his death prior to his arrival at the age of twenty-one (21) years the same shall upon such death be by my trustee turned over and shall pass to my son Daniel Collins.

"Item 11. In case of the death of

both my sons, Daniel and Perry C., prior to my death, it is then my desire, and I devise, give and bequeath my estate as named in item eight of this will, two-thirds () to my grandson Leland Samuel Collins, and one-third (4) to my greatgranddaughter, Dorothy Collins.

"Item 12. I desire simply to record the fact that it was my pleasure, at considerable expense, to educate my grandson, Doctor Charles Collins, for his profession.

"Item 13. I name as my executors under this will, my sons Daniel Collins and Perry C. Collins, or the survivor of them, and ask that they be not required to give bond nor make an inventory of my estate. And in case of the death of both of my said sons, prior to my death, or their refusal or inability to act, I desire that Mr. Walter B. Richie be appointed administrator with the will annexed hereunder, and I desire that my executors shall in all matters pertaining to my estate consult with my long-time legal adviser, Mr. Walter B. Richie, and be guided by his advice and counsel; that all details be prepared by him, I trusting and relying on him, that he will deal with my executors and my estate in all matters as he has dealt with me during my life.

"In testimony whereof I have hereunto set my hand and seal this 18th day of January, A. D. 1907. "Samuel Collins. [Seal.]

"Codicil to Will.

"Whereas, I, Samuel Collins, on the 18th day of January, A. D. 1907, made my last will and testament on that day, do hereby declare the following to be a codicil to the same. I hereby revoke, set aside and hold for naught item seven (7) in said will and in lieu thereof I do hereby declare the following to be a codicil and to stand as item seven (7) of my will:

"I do hereby bequeath to the trustees of the Woodlawn Cemetery Association, the sum of three hundred dollars ($300) to be paid by my executors and the same to be held in trust by the said trustees, by them

placed on interest and the interest thereon expended in the care and preservation of my vault now situated in Woodlawn Cemetery, adjacent to Lima, Ohio.

“Codicil.

"Know all men that whereas, I, Samuel Collins, on the 18th day of January, 1907, made my last will and testament, and subsequently, to wit, on the 26th day of April, 1910, added a codicil thereto, I do declare the following to be a second codicil to my last will and testament.

"Item one. Whereas, I have since the execution of my said last will and testament executed a lease for a long period of time on my brick block located at the northwest corner of the public square in Lima, Ohio, I do hereby revoke and cancel so much of item two (2) of my said last will and testament as restricts and limits the time in which my said real estate may be sold.

me

"Item two. My said son, Daniel Collins, having predeceased without issue, and also my friend and counselor, Walter B. Richie being also dead, I do hereby revoke and cancel items numbers six (6), eight (8), nine (9), ten (10) and eleven (11) of my said original last will and testament, and said items and each of them shall be held for naught.

"Item three. Subject to the payment of my debts and charges upon my estate and subject also to the payment of the legacies named in my said last will and testament, I do hereby give, devise and bequeath, all the rest and residue of my estate both real and personal and wheresoever situate, together with all the income thereof, absolutely and in fee simple to my son Perry C. Collins and to my great-granddaughter, Dorothy Collins, in the following proportions, to wit: To my said son Perry C. Collins the full twothirds parts thereof, and to my said. great-granddaughter, Dorothy Collins the full one-third part thereof, and to them and their heirs forever.

"In testimony whereof, I have

hereunto set my hand this 20th day of May, 1919.

"Samuel Collins.

"Signed and acknowledged by Samuel Collins, as a codicil to his 'last will and testament in our presence, and by us signed in his pres

ence.

"Charles W. Herbst.
"A. J. Dunn."

At the time of the execution of the original will, on January 18, 1907, Samuel Collins was eightythree years of age. On the 26th of April, 1910, when the first codicil was made to the will, Samuel Collins was eighty-six years of age, and on the 20th of May, 1919, when the last codicil was made, Samuel Collins was ninety-five years of age.

After a prolonged trial the verdict of the jury was returned, as above indicated, in favor of the plaintiff Dorothy Collins. A motion for judgment notwithstanding the verdict of the jury was made by the defendants, which was overruled, and a motion for a new trial was likewise denied. Error was prosecuted to the court of appeals, which court reversed the judgment of the court below, and error is now prosecuted to this court to reverse the judgment of the court of appeals.

Messrs. William H. Leete and H. O. Bentley for plaintiffs in error.

Messrs. T. R. Hamilton and Klinger & Klinger, for defendants in error:

Under the system adopted to revoke the codicil, it was not necessary to do it by any written instrument, or by the employment of any particular formality, such as would have been necessary if the intention of the testator had not clearly appeared.

Re Tibbetts, 153 Minn. 53, 189 N. W. 401; Reynolds v. Shirley, 7 Ohio, pt. 2, p. 39; Schario v. State, 105 Ohio St. 535, 138 N. E. 63.

The trial court erred in admitting the testimony of Attorney Leete relating to communications from his client, the same being in violation of § 11,494 of the General Code.

Swetland v. Miles, 101 Ohio St. 501, 130 N. E. 22; Ausdenmoore v. Holzback, 89 Ohio St. 381, 106 N. E. 41; Knepper v. Knepper, 103 Ohio St. 529.

134 N. E. 476; 1 Greenl. Ev. § 240; Butler v. Fayerweather, 33 C. C. A. 625, 63 U. S. App. 120, 91 Fed. 458.

Day, J., delivered the opinion of the court:

There are three questions presented by this voluminous record, upon which this court is asked to pass:

1. May a will containing several items which have been specifically revoked by a codicil afterwards destroyed be revived by oral testimony giving verbal declaration of the intent of the testator?

2. May an attorney employed to draft a codicil to a will, which codicil has been afterwards destroyed, testify to the fact of having drawn such codicil at the request of the testator, and identify a carbon copy thereof, if such attorney does not testify to communications between the testator and himself, or his advice to the testator in the premises?

3. Is it error for the trial court in a will contest to refuse to give the following instruction before argument: "I charge you that in the determination of the question submitted as to mental capacity and undue influence, you should consider the age of the testator, his physical and mental condition at and before the time the purported codicil was executed, his habits and associations, his relations to the parties in interest, his affections toward them, their claim upon his bounty, the character and extent of his property, and the disposition made of it in his will and codicil thereto as set forth in 'exhibit A,' and as also set forth, as you may find from the evidence, in the alleged codicil so made on May 20, 1919, and whether such disposition was reasonable and natural, or otherwise, his previous intentions as expressed by himself to others, or shown by his conduct, and any and all facts and circumstances shown in evidence bearing upon the questions, and if you find by the weight of the evidence that Samuel Collins did not have sufficient mind and memory to form an intention and purpose to dispose of his property by will or codicil on the

20th day of May, 1919, then your verdict shall be in favor of the will and codicil as set forth in 'exhibit A' herein."

Taking these subjects in their order:

1. May a will containing several items which have been specifically revoked by a codicil afterwards destroyed be revived by oral testimony giving verbal declaration of the intent of the testator?

The only testimony in the entire record upon this point is found in the testimony of Perry Collins, which is as follows:

Q. Mr. Collins, on cross-examination the other day in this case, you were asked about the time that you were at Mr. Richie's office at the time this paper called the codicil, made at the City Bank, was taken off; now, then, tell the jury just what was said and done there that day at Mr. Richie's office.

A. My father took the paper up there into Mr. Richie's office and handed it to Mr. Richie, and told him to read it over slowly and explain what that was on there-pasted on there; Mr. Richie did so and explained it to him, and he says, "Sam, is this what you want on there?" And Sam says, "No," he says, “remove it." And now Mr. Richie says to him, "Uncle Sam, this leaves this here original just the same as you first made the will." He says: "That is the way I want it; I want you to put that will in your safe, lock it up, and let no one have it, and after I am gone I want you to probate it." And he says in explaining it, that Mr. Richie

We are unable to find any case adjudicated by this court bearing upon the first question raised, since the decision made in 1836 in Reynolds v. Shirley, 7 Ohio, pt. 2, p. 39, and none since the passage of § 10,562, General Code, the original of which was passed in 1840, 38 Ohio Laws, 120 (126), § 42.

A brief review of the law with reference to revivor of a first will

revoked by the execution of a subsequent one is not out of place.

The subject has received a good discussion in the case of Bates v. Hacking, 28 R. I. 523, 29 R. I. 1, 14 L.R.A. (N.S.) 937, 125 Am. St. Rep. 759, 62 Atl. 622, and in the opinion this language is used:

"The authority to make a will is purely statutory. The Statute of Wills, 32 Hen. VIII., chap. 1, § 2, contained no provisions on the subject of revocation. In the absence of such provision the courts evolved a set of rules to govern the subject, founded upon the theory that the testator's intention to revoke, whether express or implied, should control. Naturally, in these circumstances, implied revocations became common, and interested parties were sometimes unable to resist the temptation to fabricate evidence of the declarations of the testator, for the purpose of defeating his will.

"Finally, the injustice of permitting written instruments to be destroyed by oral evidence became so apparent that Parliament enacted the Statute of Frauds (29 Car. II., chap. 3), whereof §§ 6 and 22 related to the revocation of wills and testaments. .

"The confusion concerning revocation and revival of wills, that is to be found in the decided cases has arisen from a misconception of the subject. The Statute of Frauds relating to revocation of wills was passed to maintain wills and to prevent their revocation except as therein provided. But even after its passage the courts, ecclesiastical and of common law, did not agree in their interpretations, and the question of the revival of revoked wills was raised and became a potent factor in the confusion; this state of affairs continued in England until the Statute Vict., chap. 26, § 22, was passed, which provided for the revival and republication of revoked wills." [29 R. I. 2.]

This Statute Victoria I., chapter 26, § 22, passed in 1838, provided that no will or codicil, or any part thereof, which should be in any

manner revoked, should be revived otherwise than by the re-execution thereof.

The courts in this country have reached various conclusions upon this subject, depending in great measure upon whether or not statutory enactments have provided the rule for revivor, and also upon the particular language of the statute in each case. Some states, even having no express statute, follow the rule that, where the second will contains a clause expressly revoking former wills, the execution of the second will operates as a present revocation of the first, and that the subsequent destruction of the second does not revive the first, and that oral declaration to that effect is not sufficient. Danley v. Jefferson, 150 Mich. 590, 596, 121 Am. St. Rep. 640, 114 N. W. 470, 13 Ann. Cas. 242; Re Noon, 115 Wis. 299, 95 Am. St. Rep. 944, 91 N. W. 670.

Another group of states holds that where the testator destroys the revoking will for the purpose of reinstating a former will, the former will remains in full force and effect. This conclusion is reached upon the theory that the will is ambulatory and does not take effect until the death of the testator. Where the testator destroys the revoking will in his lifetime, it never goes into effect for any purpose, and the prior will remains of the same force and effect as if the revoking will had never existed. Moore v. Rowlett, 269 Ill. 88, L.R.A.1916C, 89, 109 N. E. 682, Ann. Cas. 1916E, 718; Flintham v. Bradford, 10 Pa. 82; Randall v. Beatty, 31 N. J. Eq. 643.

Another group of cases holds that the fact that the testator destroyed the revoking will and did not destroy the first will is prima facie evidence that he intended that the prior will should remain in force. This presumption, however, may be rebutted. Colvin v. Warford, 20 Md. 356; McClure v. McClure, 86 Tenn. 173, 6 S. W. 44.

Still another group of cases adheres to the doctrine of the ecclesias