majority">Vanderburgh, J.

The contest grows out of the attempted revocation of a will which was under consideration in Graham v. Burch, 47 Minn. 171, (49 N. W. Rep. 697.) It is sought by this action to charge defendant as trustee ex maleficio of' the plaintiff for that portion of the estate received by defendant, under the will attempted to be destroyed by the testator, which plaintiff would have been entitled to had he died intestate, on the ground that the revocation of the will was prevented by the fraudulent conduct of the defendant. The case must turn upon the effect to be given to certain findings of fact in this case in reference to the subsequent discovery by the testator that the will had not been destroyed, and his acquiescence in the preservation of the will. The attempt to destroy the will was made in 1887. It is found that he at that time believed that his will had been burned and destroyed, and that the defendant Burch fraudulently induced him so to believe by concealing from him the fact that she had removed the will from the envelope containing it, and replaced the envelope in the stove in which he had placed it to be burned; “that the testator continued thereafter to live in the same house with defendant, who was his daughter, until December 23, 1888, when he died; and that after the time said James Burns, the testator, so attempted to destroy his will, and before the time of his death, — but exactly at what date does not appear, — said James Burns learned and knew that his said will had not been destroyed, but that the same was still in existence, and that he died with that knowledge, and without manifesting any further desire of making any further attempt to destroy the will.”

*22The plaintiff admits that there is evidence in the case sufficient to support these findings. The defendant testifies that his attention was particularly called to it, and that he saw the will many times afterwards, and during the last summer of his life he assured her she would have no trouble about the property, because she had got “the deed and the will.” It appeared that a deed which he had given her of the property in controversy was afterwards set aside, on the ground that it was procured by undue influence. The court below properly ordered judgment for the defendant upon the facts found. The testator, intending to destroy the will, placed it in an envelope in a stove, expecting it would be destroyed when the fire was lighted therein, which was not done for several hours. In the mean time it was abstracted by the defendant. There was clearly a locus penitentiae ; so that if it was subsequently taken out, and with his knowledge and consent thereafter remained intact, he must be deemed to have ratified her act, and to have abandoned his purpose to destroy it. He might change his mind before it was destroyed, and, if he became cognizant of the facts, it would make no difference whether he took it out of the stove himself or it was done by another person, and afterwards reported to him. — Non fit volenti injuria.”

The conclusion of the trial court in the case is therefore supported by the facts found.

Order affirmed.

(Opinion published 55 N. W. Rep. 6i.)

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