Collins v. Collins

• Decision Date: 05 April 1924
• Docket Number: 17977
• Citation: 110 Ohio St. 105,143 N.E. 561
• Parties: Collins Et Al. v. Collins Et Al.
• Court: Ohio Supreme Court

143 N.E. 561

110 Ohio St. 105

Collins Et Al. v. Collins Et Al.

No. 17977

Supreme Court of Ohio

April 5, 1924

Wills - Revivor of revoked will - Section 10563, General Code - Parol declaration insufficient, when - Evidence - Privileged communications - Attorney and client - Section 11494, General Code - Testimony of attorney attesting will - Testamentary capacity - Evidence which jury to consider.

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 must 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, the 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, tho character and extent of his property, the disposition made of ]t 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 Oz property by will.

This case comes into this court on petition in error from the Court of Appeals of Allen county.

In the opinion of the Court of Appeals, a copy of which is attached to the brief of plaintiff in error, a very clear and brief statement of the matters in issue in the trial court and in the Court of Appeals is set forth, in the following language:

"This action was begun in the court of common pleas by Dorothy Collins to contest the validity of the last will and testament of her great-grandfather, Samuel Collins, deceased. While it is a proceeding to contest the validity of a will the action had some peculiar features. The plaintiff in the common pleas court does not contend that her great-grandfather was, at the time of the execution of the original will, nor at the time of the execution of either codicil thereto, of unsound mind or unduly influenced, nor under any restraint, nor that any one of the instruments was not duly executed. What she really seeks to accomplish by her action is to secure a judicial determination that items 6, 8, 9, 10 find 11 of the original will have been revoked and are no longer in effect, and that therefore her great-grandfather died intestate except as to certain specific legacies in other items of the will. She seeks to accomplish this by establishing: First, that on May 20, 1919, be duly executed a second codicil which, by specific provisions contained therein, revoked the items above named of the original will; second, that his second codicil was itself torn from the will in July, 1919, and destroyed by the testator or by his direction, with the intention to revoke the same; and, third, that at the time of the revocation and destruction Of said codicil her great-grandfather did not in any manner revive the original will and did not republish the same.

The defendants in the court of common pleas denied that Samuel Collins had ever executed a second codicil containing the provisions claimed by the plaintiff and contended that if he had executed such codicil he did not at the time have sufficient mental capacity and was unduly influenced thereto. They further contended that at the time of the cancellation and revocation of the second codicil the testator unequivocally showed an intention by the terms of the revocation to revive and give effect to his first will, and they insist that therefOre the original will is still in full force and effect.

"The estate involved amounts approximately to $2000,000, and upon the issue as above stated the parties went to trial, and the evidence is set forth in a bill of exceptions embracing some 1600 pages. The trial resulted in a verdict in favor of the plaintiff Dorothy Collins, finding that the paper writing purporting to be his will was not the valid last will and testament as to items 6, 8, 9, 10 and 11 of said will."

The original will and codicils thereto are as follows:

"The Last Will and Testament of Samuel Collins, of Lima, Ohio.

"In the name of the Benevolent Father of All: I, Samuel Collins of Lima, Ohio, being of sound and disposing mind and memory do publish this my last will and testament, revoking any and all wills and codicils by me at any time heretofore made.

"Item 1. I desire and order the payment of all just debts and funeral expenses.

"Item 2. I desire that the real estate on which is situated the brick block at the northwest corner of the Public Square, in Lima, Ohio, now owned by me, and my farm of eighty (80) acres in section eight (8) Perry township, Allen county, Ohio, be not sold for a period of ten (10) years after my death. I do this believing that it will be for the best interests of my heirs and legatees to have this requirement. The residue of my real estate to be sold or held as my executors or the court may determine.

"Item 3. I desire that my executors file in the probate court of Allen county, Ohio, yearly, 1 full account of their receipts and disbursements.

"Hem' 4. I give, devise and bequeath, subject to each and all conditions hereinafter set forth, to my great-granddaughter Dorothy Collins, daughter of my grandson the late Doctor Charles Collins, in the event of her attaining the full age of eighteen (18) years, two thousand ($2000.00) dollars. Thin payment is subject as to the time of payment and upon the conditions set forth at the close of this item. This bequest is to be and shall be null and void and of no effect, and as if the same had not been made should said Dorothy Collins, not live to the full age of eighteen (18) years. Should she live to be twenty-one (21) years of age, then upon the same terms I give, devise and bequeath to her, and she shall be paid from my estate, the additional sum of three thousand dollars ($3000.00), subject as to the time of payment as set forth at the close of this item. This bequest to be null and void and of no effect should said Dorothy Collins not live to the full age of twenty-one (21) years. As a cart of this item and standing on equal terms with the first part of this item, I give, devise and bequeath to my grandson Leland Samuel Collins, son of my son, Perry C. Collins, in case he shall live and arrive at the full age of twenty-one (21) years, to Be paid from my estate, the sum of five thousand dollars ($5000.00). This payment is subject as to the time of payment as hereafter set forth at the close of this item. This bequest to be null and void and of no effect should Leland Samuel Collins not live to the full age of twenty-one (21) years. The payment of each of the above bequests shall not be enforced when due to the detriment of the estate, and of this fact the executors and the probate court of Allen county, Ohio, shall be the judge, and no such payments shall be made until such time as my execu- tors and said court determine they shall be made, all to the best interests of my estate.

"Item 5. I charge my executors to pay, and I bequeath to my niece Sophia Miller, twenty-five ($25.00) dollars semiannually payable each April 1st and October 1st for a period of ten (10) years from my death, should she be living so long; her death shall determine this bequest; and a like sum under like conditions to my niece Martha Collins, payment of these sums to be made to Rachael Ream as trustee for them, and my executors shall at each payment, pay to said trustee ten ($10.00) to pay her for her trouble.

"Item 6. In order to, in so far as possible, equalize my sons Daniel Collins and Perry C. Collins, I give, devise and bequeath to my son Daniel Collins the sum of twenty-three hundred twenty-seven, and 84/100 dollars ($2327.84). The justice of this may be seen in the receipt of Perry C. Collins to be found in my papers.

"Item 7. I do hereby bequeath to the trustees of Woodlawn Cemetery Association the sum of five hundred ($500.00) dollars to be paid by my executors, and the same to be held in trust by the said trustees, by them placed on interest, and the interest thereon expended in the care and preservation of my vault now situated in Woodlawn Cemetery.

"Item 8. I give, devise...