INTENTION TO REVOKE A WILL NOT ALONE SUFFICIENT.

Court of Appeals for Licking County.

#### John W. Lesnett et al v. Orla Hunter et al.

Decided, November 17, 1921.

*Wills*— Revocation *not Effective*— Unless *Intention to Revolee is Concurrent with an Act of Revocation.*

The testatrix executed a will which she left' with her attorney for safe keeping. She afterward went to a hospital, and before submitting to an operation executed a paper in due form directing her attorney to “dispose” of her will for the reason that a change she desired to make had not been made. This paper she gave to her physician who, after her recovery, handed it back to her. Some time later she called upon her attorney to make the desired change in her will. He was bust and it was arranged that she should call again on another day. Before doing so she died, and her'attorney, who had never been told of her written direction to him to destroy her will, found it among her other papers..

*Held:*That the written direction to her attorney was not effective, under the circumstances, to revoke her will, and she died testate.

*Jones & Jones,*for plaintiffs in error.

*Fitzgibbon, Montgomery <& Black,*contra.

Houck, J.

Error to tbe common pleas court of Licking county, -Obio.

The error complained of is for reversing the judgment of the probate court in its refusal to probate the last will and-testament of J. Etta Hupp, deceased, and ordering same admitted to probate.

The facts, as disclosed by the record, are as follows:

J. Etta ITupp executed her last will and testament on the 23d day of February, 1915. Said will was drawn by Judge John M. Swartz, and he retained same in his possession for safe keeping.

On the 8th day of November, 1919, the said J. Etta Hupp went to a hospital, in the city of Newark, for an operation, and before being operated, she executed the following paper writing and handed the same to Dr. Homer J. Davis with instructions to deliver the same to Judge John M. Swartz:

> *297“November 8, 1919.

> “Mr. John Swartz dispose of my will as I have not made the change I want made.

> J. Etta Hupp, Homer J. Davis,

> L. Baxter,

> Laura Batch, Minnie Conn.”

Dr. Davis kept the paper writing in his possession until Mrs. Hupp recovered from the operation and then returned it to her, the same being retained by her and being in her possession at the date of her death, which was on the fourth day of February, 1920.

After the paper writing had been returned to Mrs. Hupp, she called at the law office of Judge Swartz and said to him, “I want to change my will.” He replied, “I do not have time today. Get your mind together and come back again. ’ ’

. He further testified, “She did not mention this paper writing to me and I knew nothing about it until I found it among her papers after her death. She said not a word to me about destroying her will at any time.”

Question: Under these facts and the law applicable to same, did the paper writing revoke the said last will and testament of J. Etta Hupp, deceased?

Section 10555, General Code, provides:

> “A will shall be revoked by the testator tearing, canceling, obliterating or destroying it with the intention of revoking it, by the testator himself, or by some person in his presence, or by his direction, or by some other will or codicil, in writing, executed as prescribed by this title, or by some other writing, signed, attested, and subscribed, in the manner provided by this title for the making of a will, but nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator.”

Counsel for plaintiffs in error urge that said paper writing is clearly within that portion of said statute which provides: “or by some other writing, signed, attested, and subscribed, in the manner provided by this title for the making of a will. ’ ’

*298We are clearly of the opinion that at the time of the execution of said paper writing it was the intention of J. Etta Hupp to revoke her will.

We further find that said paper writing, as such, was sufficient in law to have revoked said will if it had been delivered to John M. Swartz before the death of the said J. Etta Hupp and had not been returned to her by the said Dr. Homer J. Davis.

Intention alone is not sufficient, in law, to revoke a will, but such intention must (be carried into effect and by such executed act or acts as to dearly establish the concurrence of both intent and act. In other words, the paper writing instructed and directed John M. Swartz to destroy the will, and if it had' been delivered to him it would have been his duty to have carried out the instructions of the deceased, but this was not done and the paper writing was. returned to Mrs. Hupp in her lifetime and she retained it until her death.

Upon the return of said paper writing to J. Etta Hupp, she knew and in law was bound to know that her will had not been destroyed.

When she went to the office of Judge Swartz, she knew her will was still in existence, because she stated to him that she desired to make .some changes in it.

Further, at this time she knew that she had executed her will, that Judge Swartz was its custodian, that she had written the paper writing and delivered .it to Dr. Homer J. Davis to be delivered to Judge Swartz, and that it had been returned to her; and being in possession of all these facts and having am opportunity to obtain the will and destroy it, she failed to do so but upon the other hand said to him she called to make some changes.

Under these facts, we find that she still considered this will as her last will and testament and that the said J. Etta Hupp died testate.

Finding no error in the record, the judgment of the common pleas court is affirmed.

'Shields, J., and Patterson, J., concur.