#### Coghlin *v.*Coghlin et al.

*Contest of will*— Evidence *that page of will was removed and*torn— *No proof of revocation*— Evidence *that testator later regarded instrument as will*— Admissible.

1. In the contest of the validity of a will which has been admitted to probate, the ground of contest being that the testator in - his life time had destroyed the will with the intention of revoking it, the allegation that the will was revoked is not sustained by evidence showing that the testator removed from the instrument and tore one of its several pages leaving the will otherwise intact and evincing an intention to preserve it.

2. In such case, for the purpose of showing the intent with which the page had been removed, it is competent to show that after it has been restored the testator regarded the instrument as his will. *Behrens*v. *Behrens,*47 Ohio St., 323, approved and followed.

(No. 10698

Decided November 10, 1908.)

Error to the Circuit Court of Lucas county.

Ella S. Coghlin brought suit in the court of common pleas to contest the validity of the last will and testament of Dennis Coghlin. Issues having been joined the followed facts were shown upon the trial: On the 28th of July, 1893, Dennis Coghlin executed his last will and testament, and on the 17th of June, 1896, he . executed a codicil thereto. The instrument consisted of eight pages,' typewritten on one side of the sheets of paper. In the autumn of 1898 he and one of his sons were sitting in his library when the father, having spent about twenty minutes in examining his will, carefully tore the last leaf but one from its place, tore the detached leaf from top to bottom and the pieces crosswise, threw the pieces into the *72waste-basket, and leaving the will lying on his table left the house. His act was attended by no expression whatever. Before the father left the house the son recovered the pieces of the torn leaf and took them, with the rest of the will, to another room and gave them to his - mother. The torn page contained the eleventh item which related to family councils, the twelfth which provided for the appointment of executors and their compensation, the thirteenth which revoked former wills, and the fourteenth which gave a legacy to a beneficiary therein named. The testatum and attestation clauses were upon the last page which remained attached to the residue of the will and was undisturbed. After the will and the torn pieces of the separated leaf were delivered to the testator’s wife, the pieces were rearranged in their original connection and secured by adhesive strips pasted on the back of the page. The page thus restored was re-attached to the will in its original position and the whole was delivered to the testator’s attorney. Thereafter, as was shown by the testimony of the attorney, he and the testator had conversations about the will, having the instrument as restored before them. The conversations related chiefly, if not wholly, to the item concerning the executors and their compensation with which the testator was not entirety satisfied. A codicil to change it was discussed and drawn, but the testator apparently being undecided in the matter never executed it. This testimony of the attorney was admitted over the objection of the plaintiff. The material portions of the charge were as follows:

*73“1. The statute of this state provides that a will may be revoked by the testator tearing it with the intention of revoking it. No particular amount of tearing is required — but the intention to revoke the will must exist. Any tearing, if the intent to revoke the will exists, is sufficient to satisfy the requirements of the statute. And if the jury find by a preponderance of the evidence that Dennis Coghlin tore his will with the intention of revoking it, their verdict should be that the will offered in this case is not his last will.

*“2.*In order to find that Dennis Coghlin revoked his will the jury must find from a preponderance of the evidence that he tore it with the intention at the time to revoke it. If he intended to revoke it at the time of the tearing it was then and there finally revoked and no subsequent change of intention on his part to recognize or treat it as his will could have the effect to restore it.

“And if the jury find that he intended to revoke it at the time of the tearing, then the verdict must be that it is not his last will, notwithstanding the jury also find that at a later date he regarded or treated it as his last will and supposed that it was his last will. ‘

“The jury in considering the intention of the testator concerning the act in question, have the right to take into consideration, his acts and statements with reference to any of the particular clauses on the page in question, either before the tearing thereof or after, and also have the right and it is their duty to consider as bearing on the question of intent, the fact, if they so find from *74the evidence, that the testator saw the will with the torn clauses inserted and pasted in where they originally were, and considered the document as his will and had under consideration the question of revoking one of said torn clatises by a new codicil.

“But the jury are instructed that such facts are to be considered only as bearing upon the intention of the testator at the time the tearing was done.”

In the court of common pleas the verdict and judgment were, that the paper writing which had been admitted to probate was the last will and testament of Dennis Coghlin. The judgmént was affirmed in the circuit court.

*Messrs Whitlock, Milroy & Mallow*and *Messrs. Smith & Beckwith,*for plaintiff in error, cited and commented upon the following authorities :

*Giffin*v. *Brooks, Exr.,*3 C. C., 110, 48 Ohio St., 211; *Behrens*v. *Behrens, 47*Ohio St., 323; *Throckmorton*v. *Holt,*180 U. S., 552; *In re Ladd,*18 N. W. Rep., 734; *In re Valentine,*67 N. W. Rep., 12; *Waterman*v. *Whitney,*11 N. Y., 157; *Johnson’s Will,*40 Conn., 587; *Comstock*v. *Hadlyme, etc.,*8 Conn., 244; *Hayes*v. *West,*37 Ind., 21; *McDonald*v. *McDonald,*142 Ind., 55; *Dickie*v. *Carter,*45 Ill., 376; *In re Page,*118 Ill., 576; *Lipphard*v. *Humphrey, 209*U. S., 264; *In re Kennedy,*167 N. Y., 163; *Burbank’s Will,*104 App. Div., 312, 185 N. Y., 559; *Flowers v. Flowers,*85 S. W. Rep., 242; *Appeal of Spencer, 77*Conn., 638; *Boylan*v. *Meeker,*28 N. I. L., *75274; *Walton*v. *Kendricks,*122 Mo., 504; *Couch*v. *Eastham,*27 W. Va., 796; *LaRue*v. *Lee,*60 S. E. Rep., 388; *Wells*v. *Wells,*144 Mo., 198; *Gordon's Case,*50 N. J. Eq., 397; *Lane*v. *Moore,*151 Mass., 87; *Kimsey*v. *Allison,*120 Ga., 87; *Sugden*v. *Lord St. Leonards,*L. R., 1 Pro. Div., 154; *Woodward*v. *Goulstone,*H. L., L. R. App., (1886), 469; *Atkinson*v. *Morris,*L. R., Pro. Div., (1897), 40; Section 5953, Revised Statutes.

*Messrs. Hamilton & Kirby,*for defendants in error, cited and commented upon the following authorities:

30 Am. & Eng. Ency. Law, 640; *Goods of Maley,*L. R, Pro. Div., Vol. 12, 134; *Wells*v. *Wells, 4*T. B. Mon. (Ky.), 152; *Giffin*v. *Brooks,*48 Ohio St., 211; *Behrens*v. *Behrens,*47 Ohio St., 323; Page on Wills, Sec. 450; *Durant*v. *Ashmore, 2*Rich. Law (S. C.), 192; *Southworth*v. *Adams,*11 Biss. (U. S.) 256; *In re Valentine,*67 N. W. Rep., 12; *Will of Ladd,*60 Wis., 187; *Collagan*v. *Burns,*57 Me., 465; *Lawyer*v. *Smith,*8 Mich., 412; *Patterson*v. *Hickey,*32 Ga., 156; *Reel*v. *Reel,*1 Hawks (N. C.), 248; *Law*v. *Law,*83 Ala., 432; *Pickens*v. *Davis,*134 Mass., 252; *McElroy*v. *Phink, 76*S. W. Rep., 753; *McDonald*v. *McDonald,*142 Ind., 55.

Shauck, J.

The general rule for determining whether the will was revoked or not is found in Section 5953, Revised Statutes. Its related provision is as follows: “A will shall be revoked by the testator tearing, canceling, obliterating, or destroying the same with the intention of revok*76ing it by the testator himself, or by some person in his presence, or by his direction.” Counsel for the plaintiff narrow the inquiry by the following clear statement of their views:

We recognize fully that there can be no partial revocation. And if a portion only of a will be erased or canceled *with intent to revoke that part only*but not with intent to revoke the whole will, the act will be ineffective and if the canceled part can be restored or is legible the will should be admitted, including the canceled portion, as a valid part of the will. “The ultimate question therefore is — Did Dennis Coghlin intend to revoke only that part of the will which he tore up and threw in the waste-basket? Or did he intend to revoke the will as a whole? But in considering the pertinency of Mr. Waite’s testimony it becomes necessary to consider the relation of the part torn out to the balance of the will.”

It is true that in preceding items of the will there were provisions for the vesting of title to property of the testator in the executors named in the twelfth item in trust for beneficiaries named. But for two reasons we think the relation of those parts of the will to the twelfth item do not justify the conclusion that the removal of the single page denoted an intention to destroy or revoke the entire instrument. The intention of the testator would be suggested by what he understood the effect of his act to be. We should probably err if we imputed to him the understanding of counsel upon that subject. Furthermore, if we should assume that he regarded, not merely the physical; *77but as well the legal, relation of the several parts of the instrument, it would be quite natural to suppose that he understood that the condition which would result from his failure to name persons to act as executors and trustees would not differ from that which would result from the death of those named or their failure to qualify, and that the court would make the appointment necessary to the execution of the trusts which earlier provisions of the will had created.

Counsel insist that the trial court erred in admitting evidence of the conversations between the testator and his counsel when the will, with its restored page, was before them and the subject considered was a codicil to change the provisions respecting executors. In support of this objection it is urged that a will once destroyed, with the intention of revoking it, cannot be rehabilitated by its subsequent recognition by the testator as his last will and testament. The soundness of this proposition is not challenged but it does not seem to reach the disputed point. The jury were clearly instructed that a will once destroyed with the intention of revoking it, cannot be thus restored, and that the testimony in question was admitted for the sole purpose of indicating the intention with which the testator removed and tore the single page. That the evidence was competent for the purpose stated in the instruction cannot be regarded as a matter of doubt since the decision of this court in *Behrens*v. *Behrens,*47 Ohio St., 323. It is true that in that case a will which had been known to exist had been lost or destroyed *78utterly. It had been admitted to probate as a lost will, the probate court having found that it was in existence after the testator’s death. The question for determination upon the trial to contest its validity was whether it had been lost, or destroyed with the intention of revoking it. That a will might be lost with the intention of revoking it, is not contemplated by the statute. It was not contemplated by the court. Indeed it is not conceivable. This court, having concluded that when a will known to have been in existence, cannot be found after the testator’s death, there is a presumption that he destroyed it with the intention of revoking it, held, that the presumption might be strengthened by proving the testator’s declaration of an intention to destroy it. The subject is so fully considered and the authorities so carefully discussed in that case that no further comment upon the subject seems necessary. This case is not distinguishable from that upon any ground that is now material. But if the evidence respecting the testator’s declaration to his counsel had been excluded, the conclusion reached by the courts below would séem to follow a consideration of the undisputed testimony showing the conduct of the testator at the time of the detachment and tearing of the separate page. An intention to revoke the entire instrument would be quite inconsistent with the obvious care which he took to separate the single page from the body of the instrument, and in the preservation of all of the instrument except the detached page. His conduct manifested as clearly and by the same token an intention to pre*79serve the body of the instrument as to destroy the separated page.

*Judgment affirmed.*

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.