On Rehearing.
SOMMERVILLE, J.[2] A reconsideration of the evidence in this case has led to the conclusion that the two items of loan sued for by plaintiff, and allowed by the court in the former opinion, should be rejected for the same reasons that the other 18 items were rejected.
Plaintiff’s claim is based on 20 alleged loans made by her to the deceased, Henry Spillman, during the years 1908 to 1913, inclusive. The demand is a stale one; and it should have been supported by the strongest evidence against Henry Spillman, who died in the year 1915.
Plaintiff testified that she alone knew of the alleged loans; that she had told no one about them, and that she'had made no demand on Spillman during his lifetime for any return to her whatever. The two amounts paid to Dr. John Callan and Albert Paul, now deceased, by checks of the plaintiff for account of Spillman, were not shown to be loans. On the contrary, Dr. Callan and the son of Albert Paul testified that they did not know whose money had been paid to them, and that plaintiff had not *51told them that she was miking loans to Spillman. There was therefore no proof, except the parol evidenc'e of plaintiff herself, that these two items had heen loans to the deceased.
[3] Act 207, 1906, p. 361, is entitled:
“An act to limit the admissibility of parol evidence to prove any debt or liability of a party -deceased.”
And it is provided therein:
“That from and after the promulgation of this act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknowledgment or promise to pay signed by the debtor; or [and] unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”
We have inserted the word “and” in brackets after the last “or” appearing in the act, for the reason that the words are interchangeable in a large degree, particularly by those who are not careful in their choice of language.
It is said in 6 Words and Phrases, p. 5002, with reference to “or” and “and”:
“Their strict meaning is more readily departed from than that of other words.”
In that same volume are found numerous references where the word “and” has been construed to mean “or,” and vice versa, in constitutional provisions, statutes, deeds, contracts, etc.
“In the construction of statutes, it is the duty of the court to ascertain the clear intention of the Legislature. In order to do this, courts are often compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or.’ ” U. S. v. Fisk, 70 U. S. (3 Wall.) 445, 447 (18 L. Ed. 243).
Plaintiff brought her action within a delay of 12 months after the death of Henry Spillman,- which occurred May ’26, 1915; and this suit was filed against his succession June 2, 1915.
But plaintiff’s testimony was not corroborated by “at least one credible witness of good moral character besides the plaintiff,” and her oral testimony did not “corroborate a written acknowledgment or promise to pay signed by the debtor.”
The judgment rejecting plaintiff’s demand was corredt; and it is affirmed, with costs.
O’NIELL, J., concurs in the decree. PROVO STX, J., dissents.