
    EVIDENCE — WILLS—REVOCATION.
    [Lucas (6th) Circuit Court,
    February 16, 1907.]
    Haynes, Parker and Wildman, JJ.
    Ella S. Coghlin v. John T. Coghlin et al.
    1. To Revoke a Will these must be a Positive Act with Intention.
    Whether or not there has been a revocation of a will is a question of the intention of the testator. To effect such revocation under Rev. Stat. 5953 (Lan. 9491), the're must be some positive act, either a total or partial destruction or obliteration, concurrent with the intent; and whether or not such intention exists is a question for the jury.
    2. Obliterating a Portion only does not Revoke a Will.
    Tearing a page from a will several years after execution thereof, with intention to revoke or cancel only the detached part, does not revoke the entire will; and where the part torn out has been preserved and reattached although by persons other than the testator, and remains legible, the whole will should be probated.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 143-148. — Ed.]
    3. Evidence Admissible to Snow Intent oe Testator in Destroying Parts oe Will.
    Testimony of an attorney as to statements made by the testator, concerning changes the latter wished to make in his will, is admissible, in a will case, as bearing on the intention of the testator in attempted destruction of certain pages of the will whether such statements were made before or after such act of attempted destruction.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2303-2310; 7 Cyc. Dig., “Wills,” §§ 354-380. — Ed.]
    [Syllabus approved by the’court.]
    ERROR.to Lucas common pleas court.
    Whitlock, Milroy & Mallow and Smith & Beckwith, for plaintiff in error.
    Hamilton & Kirby, for defendants in error.
   WILDMAN, J.

This [Ella S. Coghlin, Individually and as administratrix of the estate of John D. Coghlin, Deceased, v. John T. Coghlin, executor of the will of Dennis Coghlin, et al.] is a will contest case and comes into this court on error from the court of common pleas. Judgment below was against the contestants. Dennis Coghlin died in August, 1900, and after his death a will which had been executed in 1893, and to which a codicil had been added in 1896, was admitted to probate. The contest subsequently instituted was based upon a claim that in tbe fall of the year, 1898, Coghlin had revoked this will, by tearing it, with an intention of revocation.

The case is one of large importance, by reason of the very valuable estate disposed of by the will, but, so far as the issues before us are concerned, they are not complicated or numerous. The claims of the plaintiffs in error are based upon Rev. Stat. 5953 (Lan. 9491), reading so far v as pertinent to the present inquiry, as follows:

“A will shall be revoked by the testator tearing, canceling, obliterating, or destroying the same — with the intention of revoking it — by the testator himself, or by some person in his presence, or by his direction.”

It appears by the testimony that in the fall of 1898, Dennis Cogh-lin, in the presence of one person, who testified in the case subsequently as a witness, tore from this will — which was somewhat voluminous— one sheet thereof, and threw it into a waste paper basket. The remaining part of the will, including his' own signature and the signatures of the attesting witnesses, he laid upon a table by his side. There is no evidence of any accompanying words expressive of his intention either to revoke or not to revoke the will. The will having been admitted to probate, the burden rests, of course, upon the contestants to overcome the prima fade case thus made in favor of the validity of the will. The claim of the contestants is, that a destruction or attempted destruction of the particular part of the will which was tora, so far interfered with the general plan of the will and with the provisions written therein as to evidence clearly the intention of the testator to effect a complete revocation of the instrument.

On the other hand, it is urged that there is no evidence tending to show an intention to destroy or revoke anything more than the particular part of the will found on the page which was tom, and that the preservation of the rest of the will is clear and convincing evidence that it was not the intention of Dennis Coghlin to destroy or revoke the entire instrument.

In the case of Giffen v. Brooks, 2 Circ. Dec. 64 (3 R. 110), it was held by the circuit court of thte seventh circuit, and fully expressed in, the opinion rendered by Justice Laubie, that, under the section which I have just read, of the Revised Statutes, providing for a revocation of wills, that “a clause-of a will cannot be revoked by the testator drawing ink lines through the words thereof, with an intent to revoke such clause, but not with an intent to revoke the whole will.” And in the next clause of the syllabus:

“In such case, where all the words of such clause remain legible, the whole will should be admitted to probate, including such erased clause as a valid part of such will.”

The opinion is somewhat long and I will not read from it. It discusses the construction of the statute and the results of the act of drawing pen lines over a part of the will, as it is said was done in the ease cited. This case of Giffen v. Brooks went to the Supreme Court and was affirmed in Giffin v. Brooks, 48 Ohio St. 211 [31 N. E. Rep. 743].

In the case before us, after Dennis Coghlin had thrown into the waste paper basket the part of the will which he had torn, it was taken from the basket by a gentleman present, and not being disfigured or made illegible, it was subsequently pasted together and replaced in the original will. The testimony does not disclose who made this restoration. Subsequently, the entire will, so restored, was handed to an attorney, Mr. Waite, who testified also as a witness and with regard to whose testimony some question has been raised.

It is manifest from a reading of the section of the statute referred to, that the question whether or not the will was revoked, is largely a question of intention. Two things must concur for a revocation— an intention alone will not do it. There must be some act, either a destruction or partial destruction or obliteration of the will, and this must concur with an intention on the part of the testator to revoke, not simply to amend. If it was the intention of Dennis Coghlin to extract from the will the items appearing on the page torn from the will, and if that was his only intention, then, inasmuch as the part which so torn still remained legible and was subsequently restored to it, the Avill would not be revoked. The question of intent was, clearly, one for the jury. The case was properly submitted to the jury upon this issue and the jury found in favor of the defendants.

To our minds, not only is the position of the plaintiff in error— that the verdict is clearly against the weight of the evidence — untenable, but it seems to us that the evidence strongly indicated that it was the intention of the testator not to destroy the will in toto. And this inference is strengthened by the testimony of Mr. Waite, the attorney, as to conversations and transactions with Mr. Dennis Coghlin both prior and subsequent to the tearing of the will. I will not go over this testimony in detail. It was objected to by plaintiffs in error and the admission of the testimony by the court is laid as one of the grounds of claimed error here. It is sufficient to say that the testimony of Mr. Waite discloses the fact that, prior to. the tearing of the will, Dennis Coghlin had expressed an intention of making certain changes as to the management of his estate, by substituting John Coghlin for Amadeus, in one of the items of the will, as a sort of trustee or manager of the estate after his death. There was talk between Dennis Coghlin and Mr. Waite about the making of a change in the will so as to substitute the name of John Coghlin for that of Amadeus, and, in pursuance of that conversation, Mr. Waite drew two separate codicils, which, although never executed or signed by Dennis Coghlin, were the result of the interviews between Mr. Waite and him. There was also- testimony as to declarations and conduct of Coghlin, after the tearing of the instrument.

Was.this testimony as to the subsequent conduct and declarations of Dennis Coghlin, competent, or, did the court err in its admission?

In the case of Behrens v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820], we have a case of an alleged spoliation of a will, which, in our judgment, governs the consideration of the present case in the respect to which I have just referred. I read from the syllabus:

“When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator, with the intention of revoking it.
“To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.”

While this is as far as the court went in its statement in the syllabus of the case, it is very clearly indicated in the opinion, announced by Judge Dickman, that such evidence was admissible, either to strengthen a presumption of destruction of a will, or, on the other hand, to weaken it. It was competent when offered by either party. But it is urged by counsel for plaintiffs in error that the case of Behrens v. Behrens, supra, had reference to a lost will, and that the ruling of the court would not apply to the case of the partial destruction of one, effected by tearing or obliterating any part of its contents. We think that this position cannot be maintained, in view of the approved citations of other cases by Judge Dickman, upon which eases the court evidently bases its conclusions. Among other cases cited is that of Lawyer v. Smith, 8 Mich. 411, 412 [77 Am. Dec. 460]. Judge Dickman says of this case:

“After the death of the testatrix, a will twenty-five years old was discovered in a barrel, among some waste papers, and either torn or worn into several pieces * * *. Whether' the injury to the instrument was done by the testatrix or by some other person, and if by her, whether accidentally, or intentionally, and for the purpose of revoking the will, are questions of fact for the jury; and to aid them in determining these questions, and not as separate and independent evidence of a revocation, the declarations of the testatrix, made after the date of the will, that she had destroyed it, are competent evidence.”

The court also cites Patterson v. Hickey, 32 Ga. 156, as deciding “that where the question is revocavit vel non, parol evidence as to the acts.and declarations of the testator, are admissible, although made at any time between the making of the will and the death of the testator. ’ ’

Judge Dickman adds:

“A will is said to be ambulatory until the testator dies. Until his death the instrument has no force or effect, and until then, he has the power to cancel or revoke it. If from being clothed with this power the presumption arises after his death that he destroyed his will, that presumption will be aided by his declarations as expressive of his feelings and intention.”

In Weeks v. McBeth, 14 Ala. 474, 475, as quoted by Judge Dick-man, with seeming approval, it was held that the declarations of the testator are also. admissible to strengthen the presumption of revocation, and to show that the will was destroyed by the testator animo revocandi. It is the invariable rule in the courts of England, to admit the declarations of the testator, either to strengthen, or to repel the presumption of revocation, arising from the nonproduction off the ■will, after the death of the testator; or to explain the act of destroying, or canceling it.

Another ease cited is Smiley v. Gambill, 39 Tenn. (2 Head.) 164. This is a similar case, where a paper which the testator had thought to be a will was burned, and the question there was whether the burning was with the intention to revoke, or otherwise, and it was held that the declarations alone might not be sufficient, but they were competent, and it would be for the jury to determine whether they, together with other facts proved, made- out the intention to revoke.-

There are other authorities cited by Judge Dickman in this case of Behrens v. Behrens, supra, along the same line and bearing on the position taken by counsel — that some distinction is to be made between the case of a lost will and that of one partly or wholly destroyed. We. think that there is no distinction in principle. In either case the intention of the testator is to be arrived at, and if his own declarations or conduct subsequent 'to whatever act he did with reference to the will, is competent as evidence for its bearing upon his intention, then it would' seem that such evidence must be competent in every case where the intention of the testator is sought.

The trial judge in his charge to the jury made a proper use of this evidence. He restricted the jury in their consideration of it to its bearing upon the intention of the testator. His words and his conduct were not to be used by them to determine whether or not he had attempted to destroy a part of the-will — indeed as to this matter there was no dispute; there was no .contradiction of the testimony of the one witness as to the fact of the tearing of the paper. The paper, which appears as a part of the bill of exceptions, shows the fact indisputably, that this sheet of the will was tom into several pieces; so that, practically the only question for the jury was the question of intention of the testator. The judge so told them, and also that they might take'these declarations and conduct for such light as they might throw upon the question of intention, but for no other purpose.

Exceptions were taken to some of these instructions by the judge, but we find no error in them. There was some objection to the statement to the jury that certain parts of the will might be entirely removed from it without destroying the will as such — in other words, that the will, so far as its substance was concerned, would be complete in itself even after the removal of the sheet of paper torn from it. We think the court was within proper bounds in giving this instruction to the jury. Indeed, in the entire trial of the ease we have been unable to find any error on the part of the court. We think that the contestants were fairly treated throughout, and that the construction which the court gave to the statute and to the various decisions was altogether correct.

Our judgment is, that the judgment of the court of common pleas should be, and it is, affirmed.

Parker and Haynes, JJ., concur.;  