#### Jeffett v. Cook.

Opinion delivered November 14, 1927.

*372 Jonas F. Dyson and Ross Mathis, for appellant.

R. D. Campbell and W. G. Dinning, for appellee.

Hart, C. J.,

(after stating the facts). This is the second appeal in the case. The opinion on the former appeal will be found in 169 Ark. 62, 272 S. W. 893, under the style of Cook v. Jeffett. On that appeal, in the construction of our statute relating to the revocation and alteration of wills, it was held that a will can be revoked in whole or in part by cancellation or obliteration. It was held that the words ‘ ‘ to cancel ’ ’ and ‘ ‘ to obliterate ’ mean practically the same thing, and that, where the whole or a part of the clause of :a will is crossed out, the will i's canceled or obliterated, although the words crossed out may be legible. The effect of that opinion was to hold that, if that which is essential-to the validity of the whole will is canceled or obliterated with the intention of revoking it, the whole will is revoked. On the other hand, if a clause or a part of a clause is so canceled or obliterated as not to affect the rest of the will, then that clause or part of a clause only is revoked. In other words, upon the former appeal we held that the power to revoke a will given by the statute includes the power to revoke any part of it by cancellation or obliteration, and that, when such cancellation or obliteration of a part of a will does not *373affect tlie remainder thereof, such cancellation or obliteration is only effective as to such parts.

The opinion upon the former appeal, under our rules of practice, becomes the law of the case, and, in the application of the principles there decided, we are of the opinion that counsel for appellant are correct in their contention that the court erred in giving instruction No. E-l, which reads as follows:

> “You are instructed that, should your verdict be against the probation and establishing of the will executed by Mrs. Nannie L. Jeffett on the 2d day of November, 1920, for any cause, then your verdict will be to probate and establish the one executed by her on the 17th day of July, 1917, as her last will and testament, provided you further find that the same has been properly and legally executed and authenticated by her, and provided you further find that said will has not been revoked by her by being canceled, obliterated or destroyed for the purpose of revoking the same by the testatrix herself, or by some other person in her presence and by her direction and consent.”

There is no fact in the record from which the jury might legally infer that the testatrix intended to revoke her whole will by canceling item 2 in whole and item 4 in part. As indicated in our statement of facts, the whole of item 2 was marked out by running a pencil through each word and figure therein, but this was not done in such a way as to render the typewriting illegible. Again, in item 4 of the will, the legatees named therein were marked out by running a pencil mark through their names, but the rest of the item was not in any way changed; and the words were not crossed out in such a way as to indicate that the testatrix intended to revoke any other part of the will than the two clauses in which the pencil was run through the words contained therein, as indicated above. It may be that the testatrix did not intend to cancel either one of the clauses of the will, and only marked out the words in the one in whole and in the other in part with the view of subsequently chang*374ing her will, and that she died without doing so. Be that as it may, the manner in which these clauses were canceled, by running a pencil through the words contained in them, plainly shows that the testatrix did not intend by the cancellation of such part of the will to revoke the remainder of it. Hence the court erred in submitting to the .jury the question of the revocation of the whole will by the proof presented in'the record.

Undoubtedly, as above indicated, a testator might revoke his whole will by marking out a material part thereof in such a way as to indicate that his purpose was to revoke the whole will, although it might leave it as legible as it was before. We do mean to say, however, that the manner of marking out or crossing out the clauses of the will in question, when we consider this clause in connection with the rest of the will, plainly shows that it was the intention of the testatrix only to revoke her wjll in so far as these two clauses were concerned, and this left the rest of the will as it was before. Under the facts as disclosed by the record, it was entitled to probate after the death of the testatrix, and the circuit court erred' in submitting to the jury the question of whether the testatrix intended to revoke her whole will.

No appeal was taken from that part of the judgment of the circuit court which held that the will executed of the date of November 2, 1920, was void and of no effect. It follows that that will passes out of the case, and the judgment of the circuit court holding it void remains as a judgment of the circuit court unappealed from.

The result of our views is that the judgment of the circuit court holding void the will executed July 17, 1917, must. be reversed, because the court erred in . giving instruction E-l over the objection of appellant, and the cause will be remanded. Inasmuch as the facts on this appeal with regard to the cancellation of the will of July 17,1917, are practically the same as the facts stated upon the former appeal, it appears that the facts have been fully developed, and no useful purpose could be served by remanding the casó for a new triál. The dr*375cuit court will therefore be directed to render judgment admitting the will of July 17, 1917, to probate, and to certify its judgment down to the probate court for further proceedings according to law and not inconsistent with this opinion. It is so ordered.