Barksdale v. White.

own body, it is my will and desire that all the property loaned or given them be equally divided among my grandchildren," has no reference to the absolute estate already given to his daughters in the previous clauses of the will, but is plainly limited to that devised in the ninth clause. These words, incorporated in the ninth clause, have reference only to such estate as "is not hereinbefore particu larly disposed of" - that is, to the property mentioned in that clause, and not to that in which the testator, by clear, explicit and technical words, had already created an absolute fee simple estate.

In Mooberry and others v. Marye, supra, the testator gave to his daughters certain lands, describing them. He then gave them, in separate clauses, certain slaves which had in his life-time been delivered to them and deeds of gift recorded. The eighth clause of his will, out of which the controversy arose in that case, was as follows: "8th Item. In case of either of my daughters' death before they marry, that then their parts be equally divided among the surviving sisters."

The court held, that though the words "their parts" were broad enough to cover the lands devised to them, yet it was to be confined to the slaves, upon the ground that this limitation, being connected with clauses of the will having reference to the slaves, could not affect the devisees in fee of the land contained in previous clauses. Judge ROAN said, p. 463: "After having dismissed one subject and taken up another, he will not be construed to have resumed the former unless his expressions to that effect be clear and unequivocal." This remark may be applied with equal force to the case before us. Here the testator, after having disposed of the property, bequeathed to his daughters in the previous clauses of his will, "to them and their heirs forever," may be said to have "dismissed that subject from his mind and take up another," to wit, that which he had directed to be invested in land, and which "had not been" therein "before disposed of." It was to that and that alone to which the latter part of the ninth clause evidently has reference.

In Thornhill v. Hall, supra, the testator, after making certain provision for his daughters, married and unmarried, devised to his son R. the profit rent in Blachouse; and then provided, "and further, if any of the above legatees should die, or die unmarried, then the property bequeathed to them to be divided equally among the survivors of them." It was held, that the devise to his son R. (who died unmarried) was not cut down to a life estate by the clause of

Barksdale v. White.

survivorship (though in terms it applied to all of the legatees); but that the words of this clause applied to his unmarried daughters only.

This case was afterward taken by appeal to the House of Lords; and the Lord Chancellor, then Lord BROUGHAM, said (and I quote his lan guage as most apposite to the case before us): "My lords I hold it to be a rule that admits of no exception in the construction of written instruments, that where one interest is given where one estate is conveyed, where one benefit is bestowed, in one part of an instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt, in order to reverse that opinion to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist, it is not sufficient that you should create a doubt, it is not sufficient. that you should show a possibility, it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and that the interest first given cannot be taken away either by tacitum or by dubium or by possibile or even by probabile; but that it must be taken away, and can only be taken away, by expressum et certum." 2 Clark & Fin. 22, 36.

Applying these principles of the English chancery, and of this court, to the case before us, we are inevitably led to the conclusions, that the absolute estate vested in the daughters of the testator by the five clauses of the will above quoted, cannot be limited or contracted by the subsequent provision in the latter part of the ninth clause, that limitation being confined to the property devised in the ninth clause only.

Nor is there any thing in the codicil to alter this construction or to show a different intention of the testator. It is plain that the testator by his codicil only designed that the land to be purchased should stand in place of the money before absolutely bequeathed, if the occasion should arise for such substitution; but in point of fact no such substitution was ever made.

We are therefore of opinion, that there is no error in the decree of the Circuit Court upon the construction of the will of the testator; and the same be affirmed.

Decree affirmed.

George v. Pilcher.

GEORGE V. PILCHER.

(28 Gratt. 299.)

Evidence-when evidence of good character may be given.

Whenever the truthfulness of a witness is assailed either directly, or by crossexamination, or by evidence of inconsistent acts or statements, or by contrary evidence as to the matters testified to by him, his reputation for truth may be sustained by direct evidence adduced for that purpose.

HE facts appear in the opinion.

THE

Ould, White and Shippen, for appellants.

C. Robinson, Jones and Crump, for appellees.

BURKS, J. [Omitting some points of less material interest.] In the course of the trial, after the plaintiffs in issue had read to the jury the depositions of Charles Mink and others, and, amongst other exhibits accompanying the depositions, the certificate of marriage of William O. George and Caroline Jackson, and there rested their case, and the defendants had introduced sundry witnesses who testified in their behalf, and the plaintiffs had closed with their rebutting evidence, they (the plaintiffs) offered to read to the jury the depositions of eighteen witnesses, to prove that the said Charles Mink (whose deposition had been read by the plaintiffs in evidence to the jury) was a man of good character for truth and veracity, and a man of the strictest integrity." To the introduction of these depositions as to the character of Mink, the defendants objected; the objection was sustained, the depositions were excluded; and the plaintiffs excepted. Were the depositions properly excluded, is the question for us to determine, and the one mostly argued at the bar.

66

A witness may be impeached in many ways. "The credit of a witness may be impeached," says Mr. Starkie, "either by crossexamination, subject to the rules already mentioned, or by general evidence affecting his credit, or by evidence that he has before done or said that which is inconsistent with his evidence on the

George v. Pilcher.

trial; or lastly, by contrary evidence as to the facts themselves." 3 Stark. on Ev. (Metcalf's ed.), side page 1753. See, also, 1 Greenl. on Ev., §§ 461, 462; Phillips' Ev. 291, 293.

When a witness is thus impeached, the party calling him has the right to sustain him, and for that purpose it would seem but just and reasonable that he should be allowed to introduce evidence of the general reputation of the witness for truth.

All the authorities concur, that such corroborating evidence is admissible where the character of the witness is attacked by direct evidence; but there is much conflict among them as to its admissibility where the attack is made in any other mode. The rule is laid down by the elementary writers in general terms thus: A party cannot bring evidence to confirm the character of a witness before the credit of that witness has been impeached, either upon cross-examination or by the testimony of other witnesses; but if the character of a witness has been impeached, although upon cross-examination only, evidence on the other side may be given to support the character of the witness by general evidence of good conduct. 1 Stark. on Ev. (Metcalf's ed.), side page 148. If the character of any witness for credibility be impeached, either by direct evidence or upon cross-examination, his testimony may be supported by general evidence that his character is such that he is worthy of credit. Roscoe's Crim. Ev. 95.

In answer to the evidence of contradictory statements, and for the purpose of corroborating the testimony of the witness whose veracity has been thus impeached, it seems reasonable to be allowed to show that he is a man of the strictest integrity and of scrupulous regard to truth. 1 Phillips on Ev. 306, 307. See 1 Greenl. on Ev., § 468 and notes (Redfield's edition).

Many of the decisions in the American States hold, that the evidence is admissible only when the general character of the witness, or his character for truth, is assailed by direct evidence as to such character, or by proof on cross-examination of extrinsic facts going to general character; and that it cannot be received to sustain a witness on account of inconsistencies in his own statements on crossexamination, or on account of statements proved to have been made by him out of court contradictory of statements made by him in court, or on account of proof by other witnesses of material facts irreconcilable with the facts proved by the witness, although such proof may impute fraud or falsehood to the witness. People

George v. Pilcher.

v. Hulse, 3 Hill, 309; People v. Gay, 3 Seld. 378; Russell v. Coffin, 8 Pick. 143; Rogers v. Moore, 10 Conn. 13; Brown v. Mooers, 6 Gray, 451; Heywood v. Reed, 4 id. 574; Atwood, etc., v. Dearborn, 1 Allen, 483; Boardman v. Woodman, 47 N. H. 120; 9 Watts, 124; Wertz v. May, 21 Penn. St. 274.

Other State authorities, however, lay down a much more liberal rule. In the case of Paine and others v. Tilden and others, 20 Vt. 554, Judge REDFIELD says: "It is now well settled, that whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of the good character of the witness. And we do not think it important whether the character of the witness is attacked by showing that he has given contradictory accounts of the matter out of court, and different from that sworn to, or by cross-examination, or by general evidence of want of character for truth." State v. Roe, 12 Vt. 93; Sweet v. Sherman, 21 id. 24, accord.

In Tennessee, in a case in which a witness had been subjected to a severe cross-examination, with a view to impair his credit, and general evidence of character had been offered to sustain him, which was objected to, GREEN, J., in delivering the opinion of the Supreme Court, said: "The record shows that Hamilton was subjected to a searching cross-examination by defendants' counsel, in which many questions were asked as to the situation of the building, his motives for being in the place where he witnessed the facts, to which he deposed, etc., all going strongly to evince that no credit was given to his statements, and tending to make that impression on the jury. A witness may be impeached by proving that he is not worthy of credit, or that the facts to which he deposes are not true, or by cross-examination, in which he may be involved in inconsistencies. 3 Starkie, 1753, 7, 8. In this case, the crossexamination was of a character from which the counsel manifestly intended to argue that the witness had sworn falsely." Richmond v. Richmond, 10 Yerg. 343.

In a case in Alabama, where evidence was adduced to contradict a witness on an immaterial point, the party who called him was allowed to introduce witnesses to sustain his general character, although the opposite party disclaimed any intention of discrediting him. Newton v. Jackson, 23 Ala. 335.

And in North Carolina, in a case decided in 1869, by the Supreme Court of that State, it was held competent to sustain a witness by