
    No. 286
    No. 17977
    Dorothy Collins et al v. Perry C. Collins et al.
    Error to the Court of Appeals of Allen County.
    1271. WILLS — Revocation of items by codicil — Revivor of — Incompeteney of evidence of attorney as a subscribing witness-, as to communications with testator — What jury may consider as evidence in contest as to testi-mentary capacity.
   DAY, J.

1. .To constitute a valid revivor of a revoked will, under Section 10562, General Code, the testator must acknowledge the instrument to be his last will before the witnesses who have already signed his will, or, if before other witnesses, then these witnesses must sign the will at the request' of the testator or testator and two witnesses must sign some other written instrument showing such intent; or such testator rnhst republish his will with the same formalities as attended its original execution and publication.

2. Where several items of a will have been specifically revoked by a codicil and the codicil afterwards destroyed at the testator’s direction, the items of the will so revoked cannot be revived by parol declarations of testator to others than the original attesting witnesses-to the will who do not subscribe as witnesses to the will.

3. The terms of Section 11494, General Code, preventing an attorney from testifying concerning communications made to him by his client in that relation, or concerning his advice to the client, preclude him, in a proceeding to contest the will or codicil of his client, from testifying to matters which he must necessarily have learned by communications from his client, and to matters that relate directly to communications made and advice given while the relation of attorney and client existed. He is not, however, precluded from testifying, tne same as any other witness might; when he is a subscribing witness- to such will or codicil.

4. In a will contest it is proper for a jury in reaching a conclusion touching the testamentary capacity of the testator to consider evidence with reference to the age of the testator and the mental and physical condition at the time of the execution of the instrument in question, his habits, associations, his relations to the parties interested, his affections toward them, their claim upon his bounty, the character and extent of his property, the disposition miade of it by his will or codicil, and whether such disposition was a reasonable and natural one, as bearing upon the question whether at the time of the execution of the will or codicil in question the testator possessed sufficient mental capacity to make the same and was not under any restraint, and was able to form a purpose and intent to dispose of property by will.

Judgment affirmed.

Marshall, C- J., Robinson, Jones, Matthias and Allen, JJ., concur. Wanamaker, J., not participating.  