No. 335 | Ohio Ct. App. | Mar 19, 1923
Epitomized Opinion
Suit to contest the validity of certain items in a will on the ground that a second codicil was executed revoking said items in the will and that while the second codicil was afterwards destroyed nothing was done to revive or republish the original will. The- testator at the time of the destruction of the second codicil requested his attorney to tear off the second codicil and destroy it, which the attorney did, saying to the testator that that left the original will just the.same as:when it was. first made. The testator then said: “That is the way I. want it; I want you to put that will in your safe; lock it up and after I am gone I want you to probate it.". The trial judge instructed ' the jury that unless they should find that the testator republished the paper writing admitted to probate with the formalities described by law and in the presence of witnesses the vérdict must be that the paper' writing was not the last will and testament of the deceased. ' The vérdict was for the plaintiff, finding that the writing was not a valid will. Error was prosecuted to this court. Held:
Sec. 10562 GC. provides:
“the destruction, canceling, or revokation of the second will, shall not revive the first will unless the terms of such revocation show that it was his intention to revive and give effect to his first will; or, after such destruction, canceling or l-evoeation, he duly republishes his first will.” The instruction of the court was erroneous and
highly prejudicial. Since there was no evidence tending to show a republication of the original will the instruction amounted to directing a finding that the original will was not revived.
It was error to admit the testimony of the testator’s attorney as to the contents of the second codicil, since the attorney drew the second codicil and contents thereof were the communication of the testator to his attorney, and* therefore privileged. Reversed and remanded.