tor, alleging that the testator, at the time of making his will, desired his wife to give the whole of his estate, after her death, to the plaintiffs, and that she promised so to do; parol evidence was admitted in proof of this allegation.1 § 366. In certain cases of presumptions of law, also, parol evidence is admitted in Equity to rebut them. But here a distinction is to be observed, between those presumptions which constitute the settled legal rules of construction of instruments, or, in other words, conclusive presumptions, where the construction is in favor of the instrument, by giving to the language its plain and literal effect; and those presumptions which are raised against the instrument, imputing to the language, primâ facie, a meaning different from its literal import. In the latter class of cases, parol evidence is admissible to rebut the presumption, and give full effect to the language of the instrument; but in the former class, where the law conclusively determines the construction, parol evidence is not admissible to contradict or avoid it. Thus, where the same specific thing, is given twice to the same legatee, in the same will, or in the will and again in a codicil, and where two pecuniary legacies of equal amount are given to the same legatee in one and the same instrument; the second legacy, in each case, is presumed to be a mere repetition of the first; but as this presumption is against the language of the will, parol evidence is admissible, where the subject is capable of such proof, to show that the second bequest was intended to be additional to the first. Such would be the case, where the bequests were of sums of money, or of things of which the testator had several; as, for example, one of his horses, without a particular specification of the animal.2 But where two legacies, of quantities unequal in amount, are 1 Podmore v. Gunning, 7 Sim. 644; 5 Sim. 485, S. C. 2 1 Spence, Eq. Jur. Chan. p. [566]; Coote v. Boyd, 2 Bro. C. C. 521, 527, 528, per Ld. Thurlow; as expounded by Ld. Alvanley, in Osborne v. D. of Leeds, 5 Ves. 368, 380, and by Sir E. Sugden, in Hall v. Hill, 1 Con. & Law. 149, 150. given to the same person by the same instrument, or where two legacies are given, simpliciter, to the same person by different instruments, whether the amounts or quantities in the latter case be equal or unequal, the law conclusively presumes the second bequest to be additional to the first; and this construction being in favor of the language of the instrument, by a positive rule of law, parol evidence will not be admitted to control it. The rule, in short, amounts to this; that parol evidence is not admissible to prove that the party did not mean what he has said; but that, when the law presumes that he did not so mean, parol evidence is admissible to prove that he did, by rebutting that presumption; it not being conclusive, but disputable. And the rule is applied, not only to cases purely testamentary, but to cases where there was first a will and then an advancement,2 or first a debt, and then a will,3 as well as to others. § 367. The parol evidence mentioned in the preceding section, as inadmissible, refers to the verbal declarations of the party. In both classes of the cases referred to, parol evidence is clearly admissible to show any collateral facts relating to the party, such as his family, fortune, relatives, situation, and the like, from which the meaning of the instrument in question can be collected. And where the language is clear, and there is no presumption of law to the contrary, yet the ques Ibid. And see Hooley v. Hatton, 1 Bro. C. C. 390, n.; Foy v. Foy, 1 Cox, 163; Baillie v. Butterfield, Id. 392; Hurst v. Beach, 5 Madd. 351; Hall v. Hill, 1 Con. & Law. 120, 138, 156; 1 Dru. & War. 94, S. C.; Lee v. Pain, 4 Hare, 201, 216; Brown v. Selwin, Cas. temp. Talbot, 240. 2 Roswell v. Bennett, 3 Atk. 77; Bigleston v. Grubb, 2 Atk. 48; Monck v. Monck, 1 Ball & B. 298; Shudal v. Jekyll, 2 Atk. 515. 3 Fowler v. Fowler, 3 P. Wms. 353; Wallace v. Pomfret, 11 Ves. 542. The cases on this subject are reviewed, and the whole doctrine is fully and ably discussed by Ld. Chancellor Sugden, in Hall v. Hill, supra. 4 See ante, Vol. 1, § 289, 296; Guy v. Sharpe, 1 My. & K. 589. 5 Ibid. The "circumstances of the case," which Chancellor Kent held admissible, in Dewitt v. Yates, 10 Johns. 156, undoubtedly were the collateral facts here alluded to, since he refers to no others, in delivering his judg ment. tion of intent remains to be collected from the entire instrument; and two bequests in the same will may be ascertained to be either cumulative or substitutionary, according to the internal evidence of intention, thus collected.1 § 368. Fourthly, as to the objection, that the witness is incompetent to testify in the cause. The competency of the parties in a suit in Equity as witnesses, and the mode of obtaining their testimony, having already been considered,2 it remains only to speak of the competency of other witnesses. On this point, the general rule in Equity is the same as at Law, witnesses being held incompetent in both Courts, by reason of deficiency in understanding, deficiency in religious principle, infamy, or interest. A slight diversity of practice, in the mode of taking the objection, will alone require a brief notice in this place. § 369. In proceedings at Law, an objection to the competency of a witness may be taken in any stage of the cause, previous to its being committed to the jury, provided it be taken as soon as the ground of it is known to the party objecting. The same rule applies to examinations vivâ voce in Equity. But where the testimony is taken by depositions, the practice is somewhat varied. The ancient forms of interrogatories included a question whether the witness was or was not interested in the event of the suit; but the more modern practice, when ground of incompetency is suspected, is to file a cross-interrogatory. And though the modern rule is, that the proper time for examination to competency is before publication, interrogatories to credit alone being allowed after publication; 5 yet, where an objection to the competency is 1 Russell v. Dickson, 2 Dru. & War. 133, is an example of this kind. 2 Supra, § 314 – 318. 3 See Ante, Vol. 1, § 365 – 430. 4 Ante, Vol. 1, § 421. 5 Callaghan v. Rochfort, 3 Atk. 643; Purcell v. McNamara, 8 Ves. 324; Mills v. Mills, 12 Ves. 406; Perigal v. Nicholson, Wightw. 63; Vaughan v. Worrall, 2 Swanst. 395, 398, 399. Where a party is examined as a witness discovered by the party after publication, it may be taken, even at the hearing, if it be taken as soon as it is discovered, and before the deposition is read.1 And this is done, not by exhibiting articles, as in the ordinary case of discrediting a witness, but by motion for leave to examine as to the point of competency, upon affidavit of previous ignorance of the fact.2 If the witness has been cross-examined after he was known by the party to be incompetent, this is a waiver of the objection; and the burden of proof seems to be on the objector, to show that, at the time of the examination, he had not a knowledge of the existence of the ground of objection to his competency.4 between other parties in a suit, subject to all just exceptions, an objection to his testimony may be taken at the hearing. Mohawk Bank v. Atwater, 2 Paige, 60. 1 Callaghan v. Rochfort, 3 Atk. 643; Needham v. Smith, 2 Vern. 463. And see Stokes v. M'Kerral, 3 Bro. Ch. C. 228; Rogers v. Dibble, 3 Paige, 238. So, if the ground of objection appears from the deposition itself, it may be taken at the hearing, before the deposition is read. Perigal v. Nicholson, supra. 2 Callaghan v. Rochfort, supra. 3 Ante, Vol. 1, § 421; Supra, § 350, note. ̧ 4 Vaughan v. Worrall, 2 Swanst. 400, per Ld. Eldon. And see Fenton v. Hughes, 7 Ves. 290. CHAPTER IV. OF THE WEIGHT AND EFFECT OF EVIDENCE. 1. ADMISSIONS. § 370. In regard to the effect to be given to an answer in Chancery, when read in evidence, we have seen that the rule in Equity is somewhat different from the rule at Law.1 This diversity arises not from a difference in the principles recognized in the two kinds of tribunals, but from their different modes of proceeding, and the different circumstances under which the answer is offered in evidence. In Chancery, the plaintiff reads the admissions in the answer in the same cause, merely as admissions in pleadings, of facts which he therefore is under no necessity to prove. He is consequently only bound to read entire portions of such parts of the answer as he would refer to for that purpose; or, in other words, the principal passage in question, and such others as are explanatory of it, or are essential to a perfect understanding of its meaning. In other respects, and so far only as it is responsive to the bill, it is evidence in the cause. But when an answer in Chancery is read in a Court of Law, it is read in a different cause, between other parties, or between the same individuals in another forum, and in another and different relation; and it is offered and regarded, not as a pleading, but 1 Supra, § 281. |