instrument, and not in the promising or contracting clause, the plaintiff may, in his petition, set up only so much of the contract as he relies on: Aetna Ins. Co. v. Glasgow etc. Power Co., 21 Ky. Law Rep. 726, 52 S. W. 975; Gardner v. Continental Ins. Co., 25 Ky. Law Rep. 426, 75 S. W. 283.

The action was not brought within thirty days after the plaintiff paid the judgment in favor of Warren's administrator, but was brought on the thirty-first day thereafter. The provisions of the fourteenth clause above quoted are relied on to defeat the action. The validity of such clauses was recently considered by this court in Union Central Life Ins. Co. v. Spinks, 26 Ky. Law Rep. 1205, 83 S. W. 615, 69 L. R. A. 264, and it was there held that contract limitations of the time in which an action may be brought are contrary to public policy and void. The previous cases are collected in that opinion, which is conclusive of the question.

The defendant pleaded that John Warren was under twelve years of age. This was denied by the reply. The defendant introduced the mother of John Warren, and two of his brothers, who testified that he was born on September 3, 1889, and was about eleven years and five months old at the time of his death, on February 2, 1901. The mother testified that she kept a record in 225 her family Bible of the ages of her children, but that the Bible was lost when they moved to Kentucky several years before John's death. She also said. that her son Paschal was two years and seven months older than John. Paschal also stated the same. On the other hand, the plaintiff proved that John Warren was as large as Paschal, and they looked so alike as to appear to be twins; that John said at different times that he was thirteen, and going on fourteen; that the father of John, who was also dead, declared on different occasions that this was John's age. This evidence was objected to by the defendant, and it is insisted that the objection should have been sustained. The testimony of the mother was only based on her recollection of the date of John's birth. The testimony of her chil dren seems to have been based on the information they had received in the family. John had the same means of knowledge as they, and the father had the same means of knowledge as the mother. But they spoke under oath, while the declarations of John and his father were not made under oath. The rule excluding hearsay evidence does not apply to pedigree,

and, in stating what this exception means, in 1 Greenleaf on Evidence, section 104, the learned author says: "The term 'pedigree,' however, embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. These facts, therefore, may be proved in the manner above mentioned, in all cases where they occur incidentally and in relation to pedigree. Thus, an entry by a deceased parent or other relative, made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of the births, marriage or death of a child or other relative, is regarded as a declaration of such parent or relative in a matter of pedigree." It will be observed from this 226 that an entry in a family Bible is not admitted on the ground that it was made at the time of the transaction, but as the declaration of the deceased parent or relative in a matter of pedigree. In Swink v. French, 11 Lea, 78, 47 Am. Rep. 277, the question was whether Olivia Swink was twenty-one years of age at the time the contract relied on was made. Her husband, she being dead, was allowed to state that she had told him that she was born on July 17, 1850, although it was shown in that case there was a record of her birth in a family Bible, which was in the possession of another member of the family in another county than the one in which the trial was had. To same effect are Copes v. Pearce, 7 Gill (Md.), 247; Clements v. Hunt, 46 N. C. 400. A person may testify to his own age, although his information is based entirely on hearsay from members of the family: Cheever v. Congdon, 34 Mich. 296; Hill v. Eldridge, 126 Mass. 234; Cherry v. State, 68 Ala. 29; Central Ry. Co. v. Coggin, 73 Ga. 689. The declarations of the father and John Warren were not self-serving, but were made in the usual course of things. The recollections of the father and the boy himself are as much to be trusted as the recollection of the physician, the midwife, the nurse, or the neighbor, and, therefore, their admission did not infringe the rule that the best evidence must be produced.

The verdict is not against the weight of the evidence. The jury were warranted in finding interest from the bringing of the suit under the prayer of the petition for all proper relief, although such interest was not specifically prayed in the petition.

As the insurance company did not defend the suit, and the cotton mills company had to defend it and could not make a settlement, the court properly held 227 the insurance company liable for the cost of the action upon its policy of indemnity.

Judgment affirmed.

Fidelity Insurance is the subject of a note to First Nat. Bank v. Fidelity etc. Co., 100 Am. St. Rep. 774.

Froof of the Age of Persons is the subject of a note to Grand Lodge v. Bartes, 111 Am. St. Rep. 583. A person may testify of his own age, although his information has be derived solely from his mother, who is in the county of the trial: McCollum v. State, 119 Ga. 308, 100 Am. St. Rep. 171.

BRIGHT v. COMMONWEALTH.

[120 Ky. 298, 86 S. W. 527.]

EVIDENCE-Dying Declarations of Husband-Proof of by Widow. On the trial of one for homicide the dying declarations of the deceased, made under a sense of impending death, may be proved by his widow. (p. 591.)

WITNESSES - Infants Competency. An intelligent boy, twelve years of age, though not able to define the legal obligation of an oath, but who does know that by being sworn he is required to tell the truth and will be punished for it if he does not, is competent as a witness in a criminal prosecution. (p. 592.)

WITNESSES-Competency-Religious Belief. Whether a person's religious training has been so developed that he comprehends his responsibility to God for lying does not affect his competency as a witness. The question is one of credibility and not of competency. (p. 592.)

B. Spaulding, W. H. Sweeney and S. Russell, for the appellant.

N. B. Hays, attorney general, and C. H. Morris, for the appellee.

299 O'REAR, J. Appellant appeals from a judgment upon a verdict convicting him of manslaughter. There were no cbjections to the instructions of the court to the jury, nor do they appear to us to have been objectionable from appellant's point of interest. The instructions offered by appellant, and rejected by the court, except one to the jury to peremptorily find him not guilty, were embodied in those actually given. There was evidence of appellant's guilt, and it would there

fore have been improper to have given the peremptory instruction.

300

There are but two questions presented in the brief for appellant, which seem to be the only two relied upon in the grounds for a new trial that are reviewable by this court on the state of the record. These are questions of evidence. The first is an objection to the testimony of Mrs. Stayton, the widow of the murdered man. No eye-witness testified in the case except appellant. Stayton, whom appellant killed, was stabbed mortally by appellant, and died within a few minutes thereafter. Before his death he stated to his wife that he was dying, and that appellant and his son had killed him. The statement was not admitted as part of the res gestae, as seems to be assumed in argument, but as proof of a dying declaration. That the wounded man was then under a sense of his impending death is evident, as well as that he made the statement to his wife of the manner in which he had received his fatal wounds, in contemplation of that immediate event. We held in the case of Arnett v. Commonwealth, 114 Ky. 593, 24 Ky. Law Rep. 1440, 71 S. W. 635, that the wife of a declarant was a competent witness to prove his dying declaration under such circumstances.

The other question is as to the competency of the witness, Tommy Ewing, a lad twelve years of age. The point is made that he was too immature to know the binding obligation of an oath, and that consequently he was incompetent as a witness. By the Civil Code, every person is competent to testify for himself or another, subject to certain exceptions not material in this inquiry, unless he be found by the court incapable of understanding the facts concerning which his testimony is offered. The Criminal Code contains no such provision. Indeed, it is silent on this point, which leaves in force in this state as to criminal prosecutions the common law, as it affects the competency of witnesses. On the subject of interest, and the like, the legislature has made certain changes in this respect as to such competency, but these changes do not touch upon the question of understanding or religious or moral comprehension of the witness. In Greenleaf on Evidence, section 367, it is said that if a child offered as a witness appears 301 to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever his age may be. The witness stated that he realized that it was wrong to tell

a lie; that, while he did not understand what an oath meant, yet he knew that by being sworn he was required to tell the truth; and that if he did not do so he would be punished for it, but he did not know how, nor by whom. As to a future punishment, he naively said that "the bad man would get him if he told a lie." His evidence was clear, and showed mental capacity, understanding, and memory sufficient to qualify him. It appears that he was conscious that the oath bound him to speak the truth, and he knew the difference between telling the truth and telling a lie. It did not disqualify him as a witness that he was not able to define the legal obligation of an oath. Whether his religious training had been so developed that he comprehended his responsibility to God for lying was not made clear, nor was it material as affecting his competency. In Bush v. Commonwealth, 80 Ky. 244, 3 Ky. Law Rep. 740, it was held that, under the constitution of this state, the civil capacity belonging to or enjoyed by citizens generally shall not be taken from or denied to any citizen on account of his opinions in regard to religious mat

Otherwise the constitutional guaranty that "the civil rights, privileges or capacities of any citizen shall in nowise be diminished or enlarged on account of his religion" would be violated when one class of citizens is held to have civil capacity to testify in a court of justice because they entertained a certain opinion in regard to religion, while another class is denied to possess that capacity because they do not conform to a prescribed belief. "Free governments deal with the acts 302 of the citizen, and not with his thoughts." If disbelief in Deity does not disqualify one from being a witness bere, unbelief could not do so. The question becomes one of credibility and not of competency.

We perceive no error in the record, and the judgment is therefore affirmed.

The Admissibility in Evidence of Dying Declarations is the subject of a note to State v. Meyer, 86 Am. St. Rep. 637. At page 641 of this note it will be seen the dying declarations of a wife are admissible on his trial for her murder, and that the dying declarations of a husband are admissible against his wife to prove her guilt.

There is No Fixed Age When Infants Become Competent to testify as witnesses. Children seven or eight years of age have been permitted to testify on the trial of grave crimes. The substantial test of the competency of an infant witness is his intelligence and his comprehension of an obligation to tell the truth: Commonwealth v. Furman, 211 Pa. 549, 107 Am. St. Rep. 594; McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, and cases cited in the cross-reference note thereto.