prove that his attention was directed by her to the provisions of item 6 and item 7 of the will, and was requested by her to state whether the provisions in said two items 6 and 7 would be a legal and lawful disposition of her estate, and witness advised her that such disposition made in items 6 and 7 would be legal and lawful. Excluded and exception.) It will thus be noted that in Swetland v. Miles, supra, the attorney was asked to go much further than in the instant case. The question was again before the court for consideration in Knepper v. Knepper, 103 Ohio St. 529, 134 N. E. 476, wherein the doctrine of Swetland v. Miles was adhered to; but an exception was recognized where the attorney is one of the attesting witnesses, it being held that "when a testator procures his attorney as a subscribing witness to his will, he by that act expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will." Now, it does not appear by this record that the attorney who was testifying, Mr. William H. Leete, was a subscribing witness to the codicil to the will of Samuel H. Collins, so that the benefit of the exception of the rule in Knepper v. Knepper, supra, does not apply, and the witness stood simply in the relation of attorney and client to the testator Samuel H. Collins, at the time of the drawing and execution of the codicil in question. If by the statute and the decisions of this court the attorney could not testify to any communication made to his client, or any advice given in the premises, it would seem to follow that he would likewise be incapacitated from testifying to the direct results of such communication between himself and his client, and it cannot be gainsaid that the contents of the codicil were the result of the communication between the testator and the attorney, because the attorney must have obtained the information from the testator, and it must have been what the testator wanted put in the codicil by his attorney; so that, reduced to its last analysis, the codicil and copy thereof are the direct result of the communication between client and counsel, only the communication in another form, which the statutes say is privileged. By identifying and testifying to the copy of the codicil, the attorney is, in effect, testifying to the communications which he received from his client. To permit his testimony, we think, is in violation of § 11,494, General Code, and while Evidence-of contest. this section is one of attorney-will exclusion of testimony, and therefore should be strictly construed, we feel bound by the former decision of this court construing this section. The view that we have taken of this matter has received judicial consideration in other jurisdictions. In the case of Butler v. Fayerweather, 33 C. C. A. 625, 63 U. S. App. 120, 91 Fed. 458, the third syllabus is as follows: "Code Civ. Proc. (N. Y.) §§ 835, 836, provide that an attorney shall not disclose a communication made to him by a client, or the advice thereon, in the course of his professional employment, unless the privilege is 'expressly waived upon the trial' by the client, but that he may testify in the probate of a will... as to its preparation and execution,' if he is one of the subscribing witnesses. Held, that an attorney who has prepared a codicil alleged to have been executed and published by the client, and afterwards destroyed by a third person, cannot be required to disclose its contents, and whether it was signed in presence of attesting witnesses so as to constitute a publication, the attorney not having attested the codicil." To the same effect is Re Cunnion, 201 N. Y. 123, 94 N. E. 648, Ann. Cas. 1912A, 834, wherein it is held that, where the attorney is not a witness to an alleged subsequent will drawn by him, he is incompe (110 Ohio St. 105, 143 N. E. 561.) tent to testify to contents, to defeat the probate of a prior will, the subsequent will not being found. In Re Eno, 196 App. Div. 131, 187 N. Y. Supp. 756, it is held: "It is the settled law, under Code Civ. Proc. §§ 835, 836, that, except he is an attesting witness to a will, in no case is an attorney permitted to make disclosure in respect to the contents of any document or other information communicated to him in the course of his professional employment by his client." See also 5 Wigmore on Evidence, 2d ed. § 2314, where the cases are collated and discussed. Recognizing, as we do, that in other jurisdictions, and under the common law, the rule might be different, yet in the light of the Ohio statutes and the decisions of this court construing the same, we are constrained to the conclusion that the testimony of the attorney as to the identity of the copy of the codicil under such circumstances was incompetent. Whether the legislature may see fit to make some change in the statutes, it is not for us to say. It is argued that in this case the testimony of the attorney was not prejudicial, for the reason that other witnesses under no disability testified to the existence of this codicil, its preparation, the date and manner of execution, to its removal and destruction at the instance of the testator; that there was sufficient evidence of identification to warrant the introduction of the exhibit in question, so that the jury from all the evidence in the case could say whether such a codicil was executed, as claimed by the plaintiff. But the question we are required to pass upon is simply the right of the attorney who drew the codicil to identify the exhibit as a true copy of the original, the same being a product solely of the communications had with his client and his advice given in that relation. The construction heretofore given § 11,494, General Code, by this court, we feel, requires us to deny this right, although the record discloses what would seem to be sufficient testimony to warrant the introduction of the exhibit in question. A This brings us to the third question in the case, and that is whether or not the request before argument, made by the defendants and refused by the court, was erroneous. copy of this request has heretofore been given, and it is unnecessary to repeat it. One of the paramount issues in this case was the testamentary capacity of Samuel Collins on May 20, 1919, and a great portion of the testimony contained in this record of nearly fourteen hundred pages bears upon that point. Was he of sound mind and memory and not under any restraint upon the day of the execution of this codicil? The defendants claim he was, and the plaintiffs say he was not, lacking in such testamentary capacity. Wills-testa pacity. The request made, we think, had a direct bearing upon that issue, and the subjects referred to therein mentary camight be proper subjects for the jury to consider and for counsel to argue to the jury in support of their respective contentions. The substance of the charge contained reference to the age of the testator, his mental and physical condition at or before the time of the execution of the codicil in question, his habits and associations, his relations to the parties in interest, his affection toward them, their claim upon his bounty, the character and extent of his property, the disposition that he made of it, both in his will and the codicil, whether such disposition was reasonable and natural, and reference to the previous intention of testator as shown from declarations of testator and from any and all the facts and circumstances admitted in evidence. The jury were instructed that if they found by the preponderance of the evidence that the testator 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, their verdict should be in favor of the original will. The testimony in will contests necessarily must take a wide range, and while the principles underlying the grounds necessary to set aside a will are few, and not involved, the testimony necessary to be considered to reach a conclusion concerning such grounds may be quite volumi nous. "The rule is that a testator has the right to make a harsh, unjust, unreasonable, or even a cruel will; he may disinherit his only child and leave his property to other heirs or to strangers. Such facts, in themselves, do not constitute legal grounds for holding that the testator was mentally incompetent. Yet, in determining the ultimate question of the testamentary capacity of the testator, the jury has the right to consider any evidence showing that the will was just or unjust, reasonable or unreasonable, natural or unnatural. It may also consider evidence as to the value of the decedent's estate and the financial condition of those who might naturally expect to be beneficiaries, at the time the will was made. Such matters, although not in themselves establishing testamentary incapacity, may be considered and have weight, according to circumstances and in connection with other evidence, in determining the question of capacity." 1 Alexander, Wills, § 355. I. Introductory, 244. The statement in the latter part of the request as to the ability of the testator is apparently taken from Dunlap v. Dunlap, 89 Ohio St. 28, 104 N. E. 1006, and the elements claimed to be involved in the evidentiary facts stated in the request are all recognized in will contests as being proper subjects of consideration by a jury, and not in conflict with Niemes v. Niemes, 97 Ohio St. 145, 119 N. E. 503. The record further discloses some criticism of the verdict, in that it fails to refer to item 2 of the original will, which was changed by the codicil executed in May, 1919. We do not feel that the verdict as returned should have been disturbed upon that ground, as the matter is not of great consequence, considering the other paramount issues of the case. The verdict was responsive to the issues submitted. While we are impressed with the fairness and careful manner in which this long and arduous case was tried in the Court of Common Pleas, yet, for the reasons stated and conclusions reached, we are of the opinion that the judgment of the Court of Appeals should be affirmed. Marshall, Ch. J., and Robinson, Jones, Matthias, and Allen, JJ., con cur. Wanamaker, J., not participating. ANNOTATION. Revocation of codicil as affecting will. II. Revocation of codicil as revocation of will, 245. III. Revival of changed or revoked por tion of will: a. Rule that provisions are restored, 246. b. Rule that provisions are not restored, 247. I. Introductory. The revocation of a later will as reviving earlier will is discussed in the annotation in 28 A.L.R. 911. In the ordinary case a will is modified, not revoked, by a codicil. Again, speaking generally, it is special provisions of the will that are modified. The remainder of the will is left unaffected. The distinction between a codicil and a later will is noted by the court in Re Diament (1917) 88 N. J. Eq. 552, 103 Atl. 199, where, in a case in which the last of three codicils which the testator had executed to his will was destroyed with the intention of revoking, the court says: "The case was treated in the lower court, and argued here, as if it were a case of the revocation of an earlier by a later will and the subsequent cancelation of the latter. Such is not the situation. A codicil is so far from being a revocation of any existing will and codicils that it is a republication thereof, except as altered, and frequently, as in the first codicil to the present will, ratifies and confirms the former document except so far as altered." In Re Kathan (1913) 141 N. Y. Supp. 705, it is stated as follows: "A codicil is not now presumptively a revocation of an entire will, but a supplement and a revocation pro tanto." II. Revocation of codicil as revocation of will. The revocation of the codicil does not of itself revoke the will. Re Diament (1914) 84 N. J. Eq. 135, 92 Atl. 952, affirmed in (1918) 88 N. J. Eq. 552, 103 Atl. 199; Osburn v. Rochester Trust & S. D. Co. (1913) 209 N. Y. 54, 46 L.R.A. (N.S.) 983, 102 N. E. 571, Ann. Cas. 1915A, 101; Re Danklefsen (1916) 171 App. Div. 339, 157 N. Y. Supp. 119; Re Cable (1924) 123 Misc. 894, 206 N. Y. Supp. 501; Stewart's Estate (1892) 149 Pa. 111, 24 Atl. 174; Re Cook (1850) 5 Clark (Pa.) 1; Malone v. Hobbs (1842) 1 Rob. (Va.) 346, 39 Am. Dec. 263. In some cases this is held to be the rule, notwithstanding the testator may have intended a revocation of the will itself. Malone v. Hobbs (Va.) supra. The court here said: "In the case before us, it was physically impossible that the act of the destruction in question-the burning of the codicilcould have been directed against the will, inasmuch as the will was not present, but in a different custody. And yet the court instructed the jury that if the testator intended, at the time of destroying the codicil, thereby to revoke the will, in that case the destruction of the codicil was a revocation of both the will and the codicil. If this be correct, it must be either because a codicil is so essential a part of a will that its revocation necessarily involves the revocation of the will (a ground too palpably wrong to require discussion, and not assumed by the appellee's counsel nor by the circuit court), or because the destruction of a codicil without any the slightest destruction of the will, or any attempt to destroy it, or even an intent to destroy it, must have the effect of revoking the will if so intended by the testator. This last proposition, it seems to me, requires but little consideration after what has been already said." In other cases, however, this is regarded as a matter of intention, and it is held, where the provisions of the codicil are inseparably blended with those of the will, and the act which revokes the codicil must, under the circumstances, have been intended to revoke the will also, that the will will be held to have been revoked. Re Brookman (1895) 11 Misc. 675, 33 N. Y. Supp. 575. In James v. Shrimpton (1876) L. R. 1 Prob. Div. (Eng.) 431, where a will executed by a widower largely in favor of his children and grandchildren had been revoked by his remarriage, and thereafter he executed a codicil in which he made a provision for his wife, and in all other respects revived, ratified, and confirmed the revoked will, but upon his death after that of his second wife the codicil could not be found, he apparently having destroyed it under the misconception that such destruction would leave the will in force, although the revival thereof depended upon the codicil, the court, having come to the conclusion that the testator destroyed the codicil with no intention of revoking the will, decreed probate of the will and codicil on the theory that no more effect could be given to the act than could be given if the testator had destroyed the paper under a mistake as to the instrument he was destroying. Nothing is said, however, as to whether the provisions of the codicil beyond the ratification of the will were given effect. The destruction of a codicil which was construed by the court as simply an attempt to confer power on the widow and daughter, to whom a life estate and a contingent remainder had been given in a farm, to sell the farm and divide the proceeds if they could agree, was held not to revoke the will in Re Tyler (1911) 128 N. Y. Supp. 731. The court says: "In my view of the case, this codicil was really unimportant, as it changed no part of the will. It simply tried to make permissive a sale of the property, if desired and the parties could agree. Its existence or destruction worked no material change in the plans of the testator, and to hold in this case that the testator, because he executed this codicil and then destroyed it, by that means, actually revoked and set aside and rendered null and void his former will, or, in other words, he died without leaving a will at all, is going further than any case should go -certainly further than any case to which my attention has been called, which applies to this state of facts." The codicil, however, from the statement of facts, seems to have effected some changes in the disposition. In Re Tyler (N. Y.) supra, according to the court, the will gave testator's wife the use of all of his property during his (sic) lifetime, and upon her death then the use of said property, or so much thereof as remained, to his daughter, and upon her death, to a son, if living; the provisions of the codicil are stated to have been substantially as follows: "I desire my wife Anna shall have the life use of all of my property and then if they can so agree, the farm can be sold and the money divided as they can agree, and after her death, it should go to his daughter, Cora M. Cole, should she be alive and if she be dead, it was to go to Fred and then to a third party by the name Louise Swarthout." III. Revival of changed or revoked portion of will. a. Rule that provisions are restored. The courts are not agreed whether the modified or revoked provisions in the will are restored to their original form by the destruction of a codicil. It has been held that the will is restored to the form in which it was before the codicil was executed. Re Diament (1914) 84 N. J. Eq. 135, 92 Atl. 952, affirmed in (1917) 88 N. J. Eq. 552, 103 Atl. 199. Although nothing is said on the point in Stewart's Estate (1892) 149 Pa. 111, 24 Atl. 174, it seems to be assumed in that case that a will would be admitted to probate in its original form, where it appeared that a codicil which changed a devise of land given in the will to one person, and devised it to another, had been revoked. Likewise, in Re Cook (1850) 5 Clark (Pa.) 1, where the only question was as to whether the revocation of a codicil by tearing, which resulted in a part of the will being torn off, was a cancelation of the will, the court, in holding in the negative, seems to assume that the will would be admitted to probate. The implication, however, in this case, is not so clear that the will as originally written would be admitted. The court in Re Diament (1915) 84 N. J. Eq. 135, 92 Atl. 952, says: "When a codicil is regarded as a mere modifying instrument intended only to modify or change specific provisions of a will, and designed to stand with the will as a mere amendment to or modification of its provisions, it is difficult to conceive the destruction of the codicil and retention of the will by the testator as other than the adoption of a convenient method of withdrawing or nullifying the amendment, even though no force be given to the underlying principle of the commonlaw rule that a provision for revocation, express or implied, is purely testamentary in its inherent nature. In executing such a codicil, the intention of testator is that the will and codicil shall be read together; in destroying such a codicil and retaining the will, the intention most apparent would seem to be that the will should be read without the codicil." In affirming the decision of the lower court, the court in (1918) 88 N. J. Eq. 552, 103 Atl. 199, after stating the effect of a codicil as being a republication of the will as altered, says of the destruction of a codicil: "We have, then, instead of the somewhat difficult question of the effect of the cancelation of a later will upon an earlier one, the comparatively simple question |