Now, another improbability. All the evidence shows that Judge Davis was a business-like, quiet, methodical, careful, suspicious man, secretive, keeping his business to himself, keeper of his own counsels; and when he did make a will it was sealed; it was given to one of his friends to put away, and to keep. It did not become the common property of the neighborhood. He did not mount his roan horse and ask the people of the community to look at it. He was a methodical, business-like man, and I suppose many of you, gentlemen of the jury, knew him; and I shall rely somewhat on your knowledge of A. J. Davis, for you to say whether he made this will, whether in 1866 he left his old father naked to the world; whether he cared nothing for brothers and sisters; whether he cared nothing for the children of the sister that raised him. I leave it for you to say. You probably know something about this matter. Andrew J.
Davis, when he was a child, when all the children were gathered around the same knee, the children that had been nourished at the same tender and holy breast, he would not have done this then. If some good fortune came to one, it was divided.
How beautiful the generosity, the hospitality of childhood! But as they grow old there comes the love of gold, and the love of gold seems to have the same effect upon the heart that it does upon the country where it is found. All the roses fade, the beautiful green trees lose their leaves, and there is nothing in the heart but sage brush. And so it is with the land that holds within the miserly grip of rocks what we call the precious metals.
The next question in the case is the Knight will. Was any such will made? And I say here to-day, knowing what I am saying, I never saw upon the witness stand a man who appeared to be more candid, more anxious and desirous of telling the exact truth than E. W. Knight, and from what I have heard there is not a man in Montana with a better reputation. He has no interest in this business, not one penny; and it was months and months after the death of Judge Davis that we knew such a will ever existed--that is, on our side. Either Mr. Knight was telling what he believed to be true, or he was perjuring himself. No ifs and ands about it. He is a man of intelligence and knows what he is saying. He swears that A. J. Davis made a will.
And what else does he swear to? That there was also the draft of a will, which gave away the mine or provided for its working, and then at the end of that draft, provided that the rest of the property should be divided in accordance with the statute. Thereupon Mr. Knight told him: "Your heirs would interfere by injunction, and you had better bequeath your whole property and fix the amount to be expended in the development of the mine." Thereupon he made another will, and that will was signed.
Now, Mr. Knight knows whether it was signed or not. The will was signed or Mr Knight committed perjury knowingly, willfully and corruptly. What does he say? That it was signed. What else? That it was attested. Then these gentlemen came forward with Mr. Talbot, who says that Knight said that when Davis came to the bank to get the will he thought he was going to execute it. That is, the idea being, it was not signed.
What was it attested for if it was not signed? That is absurd to the verge of idiocy. But they say that Mr. Knight is not corroborated. Let us see. He says that Andrew J. Davis made a will. Mr. Keith swears that A. J. Davis made a will. Knight says that Davis went out and brought Keith in, and Keith swears that he lived next door and A. J. Davis did come in there and get him and he knows the time on account of the sickness of his child. Corroboration number two. Knight swears that Davis then went for another man. Keith says that he did go and get Caleb Irvine. Corroboration number three. Knight said one of the men who signed the will was in his working clothes. Corroboration number four.
Knight swears that Davis read the attesting clause. Keith swears the same. Keith swears that Davis signed it, that he signed it, and then Irvine signed it. What more? He swears that Knight wrote it, and he was writing it when he went in. And yet they have--and I will use an expression of one of the learned counsel--the audacity to say that Mr.
Knight has not been corroborated.
And they would have you believe that Knight took that will over to Helena and put it in the safe when it was not signed by A. J. Davis, and they would make you think besides that, that it was attested by two witnesses, and that two witnesses had to say that they saw A. J. Davis sign it, that he signed it in their presence, and that they attested his signature in his presence and in the presence of each other. They proved a little too much, gentlemen. They proved that by Talbot. They proved that by Andrew J. Davis, Jr., who expects to fall heir to all that is taken, and they proved it also by John A. Davis, the proponent.
Recess.
May it please the Court and gentlemen: When we adjourned I was talking about the testimony of Mr. Knight, and the making of the Knight will.
The evidence is, the way that will came to be made, or what started it, is, as follows: A. J. Davis borrowed of the First National Bank of Helena forty thousand dollars to put in the mines, and Governor Hauser remarked when he got the money: "Another old man going to fool with mines until he gets broke." And that it seems piqued A. J. Davis, touched his vanity a little, and then he said: "That mine shall be developed whether I live or die. I am satisfied that it is a good mine, and I am going to make a will and I am going to provide in that will for the mine being developed." And thereupon he talked with Mr. Knight. And finally Knight drew up a draft of a will, according to his testimony, providing for the working of that mine. And what did he say when he got through with it? "Now as to the balance of the property, let it be divided according to law. That makes a good will." That is what he said.
Then Mr. Knight said to him: "If you make the will that way it may be that the heirs will come in and enjoin the working of the mine on the ground that it is a waste of money. You had better make a full will and dispose of all your property as you may desire, and fix the amount to be used in the devolopment of that mine."
Now, this is either true or false. It is true if Mr. Knight can be believed; and he can be believed if any gentleman can be trusted.
What more? Knight says that A. J. Davis made the memoranda from which to draw that will, had his manager come, and in that will it told how the shafts should be run, how much work should be done, and charged his trustees to do development work up to a certain amount.
Is that all born of the fancy of this gentleman? And can you believe that a man like Mr. Knight, who has run the largest bank in Montana for twenty-five years--can you believe that such a man, who is not in any necessity, who is not in need of money, comes here and swears to what he knows to be a lie, and makes this all out of his own head, carves it out of his imagination?
The second will was made, the second will was signed, the second will was attested, the second will was given Mr. Knight to keep. They say it was not signed, and yet Mr. Knight swears he told one man about it. He told Mr. Kleinschmidt, so that if anything happened to him, Knight, he would know that Knight had in that vault the will of Andrew J. Davis. Do you think he would have done that if the will had not been signed, if it were worth only waste paper? And yet they are driven to that absurdity for the purpose of attacking the evidence of this man. It will not do.
Judge Knowles said that in a conversation at Garrison, he said that in the will the mine was left to Erwin Davis, and the reason given for it was that Erwin Davis was a business man. Now, the only way that can be explained, is one of two ways. One is that Judge Knowles has gotten two matters mixed; the other is that he is absolutely mistaken.
Judge Knowles, the President of the First National Bank of Butte--Judge Knowles, who has been the attorney of Andrew J. Davis, Jr.--Judge Knowles had this conversation, or some conversation, with Knight; and why would Knight have taken pains to tell him a deliberate falsehood?
There is something more. After all this occurred, Andrew J. Davis, Jr.
went to Mr. Knight and asked him to write out what he remembered about that will, and Knight dictated it on the spot and sent it to him.
Where is that letter? Here it is. I want to read that letter to this jury. That was a letter written long ago. A letter written before this will was filed in this court. A letter written before Mr. Knight knew that A. J. Davis, Jr. had any will. A letter written before Knight imagined there could ever be a lawsuit on the subject. Andrew J. Davis Jr. went to him and asked him to write out what he knew about that will, and he turned, according to his own testimony, and dictated it, and sent it to him, like a frank, candid, honest man; and before I get through I will read that letter, and when it is read I want you to see how it harmonizes absolutely and perfectly with his testimony here on the stand.
I will draw another distinction. Mr. Knight gave two depositions in this case. These depositions have not been suppressed like the deposition taken of Sconce. Not suppressed. Why? Because we are willing that the jury should read the two depositions and hear his testimony besides, and there is not the slightest contradiction in the depositions themselves, or between the depositions or either one of them and his evidence that he gave here--except two that they claim; and think what immense contradictions they are.
In one deposition he says that A. J. Davis left some bequests to some aunts. Mr. Knight swears on the stand that he never said aunts, he said sisters, but if he did say aunts he meant sisters, because he never heard of his having any aunts, and yet that is held up as a contradiction, and to such an extent that you are to throw away the testimony of this man.
Now, here is the letter. This will was filed July 24, 1890, and when he wrote this letter he did not know that A. J. Davis Jr. knew of a will, or that John A. Davis knew of a will. And this is what he writes:
Helena, Montana, July 22, 1890.
I beg to say that some time in 1877 or 1878, I made a draft of a will for your uncle Andrew J. Davis, which he duly executed, and left the same on file with me, as a special deposit for two or three years, when the same was canceled and destroyed; when I was led to believe and to conclude that he had made and executed a will to supersede and take the place of that.
That explains Talbot's testimony. Instead of saying to Talbot that A. J.
Davis came there, as he thought, to execute the will, and destroyed that will, it not being signed, what he said was that he destroyed the will, but from the way he acted he thought he was going to make another, that he was going to execute a will; and this is exactly what Mr. Talbot said. To execute a will, and it took a re-direct examination to swap the "a" for "the."
I cannot satisfactorily recall the considerations and provisions of said will drawn by me, but the main burden and desire was that the work on the mine known as the Lexington, should be continued to a certain amount of development, and that the mill should be carried on under a certain management, and after providing for the payment of his just debts, he made certain bequests naming certain nephews and nieces, running from ten thousand to fifteen thousand dollars each, and you are especially named for the sum of twenty-five thousand dollars, and if the estate exceeded in value the net sum of five hundred thousand dollars, then those bequests were to be increased; and if in excess of one million dollars, the further increase was named and specified.
That is the letter he wrote before he ever knew there would be this suit; before he knew of the existence of this will.
A certain boy named Jefferson--claimed to be his son--was given the sum of twenty thousand dollars to be paid to him in yearly sums of five thousand dollars for four years, and the same provision as to a certain girl, claimed to be his child.
Is that not exactly what he swore to on this stand?
Certain executors named E. W. Knight, S. T. Hauser, and W. W. Dixon, each to receive the sum of ten thousand dollars for services.
Yours truly,
E. W. KNIGHT.
Now, gentlemen, they were informed of the existence of that will and of its destruction, and were so informed before John A. Davis filed this will. And when we pleaded this will, John A. Davis pleaded that it had been republished, and yet no evidence was given in of any republication.
They knew that under the statute of Montana, when a man makes will number one, and afterwards makes will number two, and afterwards destroys will number two, that will number one is not revived; that the making of the second will kills the first, and the destruction of the second kills that, and leaves the man intestate and without any will.
Now, there is the letter of Mr. Knight--full, free, frank, candid, honorable, like the man himself. He says there that he does not remember all the provisions, but he does remember that he provided for some nephews and nieces, and provided for Andrew J. Davis, Jr., twenty-five thousand dollars, for one Jefferson twenty thousand, for the girl about the same, and that he provided also for the executors of the will, and appointed Knight, Hauser, and Dixon as his executors. That is exactly what he says here.
Now, was that will made? Have they impeached Mr. Keith? I tell them now that they cannot impeach him. He has sworn to the making of that will, apart and separate from Mr. Knight. Oh, they say, why didn't they bring Knight in, and prove by him that he then recollected Mr. Keith? What has that to do with it? Mr. Keith recollected Mr. Knight, swore that he wrote the will, and that he was writing it when he came in, and swore that he attested it, that Davis signed it, and Irvine also signed it.
What more do we want on that will? I say, gentlemen, that the will of 1880 ends this case. There is not ingenuity enough in the world to get around it, and there was and never will be enough brains crammed into one head to dodge it. That will was made, and every man on the jury knows it. That will was executed by Andrew J. Davis, every man of you knows it, and the will was afterwards destroyed.
Now, the question is, did that second will revoke the first will? Had it a revoking clause in it? E. W. Knight swears it had, and he swears that he copied it from a will made by an uncle of his named John Knight, and he had that will in his possession here and in that will there are two revocation clauses, and Knight swears that he copied those clauses, and right here it may be well enough to make another remark. When he read the will to A. J. Davis, and the passage "hereby revoking all wills,"
Davis said: "There is no need of putting that in. I never made any other will. This is the first." Knight said to him, "Well, that is the way, that is the form, and I think it is safer to have it that way." And Davis said: "All right; let it go."
How do you fix that? There is no way out of it, that the will was made in 1880, revoking all former wills. What else? The conditions of the will of 1880, with regard to working the mine, with regard to bequests to nephews, with regard to bequests to others, with regard to the twenty thousand dollars given to Jeff Davis, and the twenty thousand dollars given to the girl; these provisions are absolutely inconsistent with the provisions of this will of 1866. So on both grounds the will of 1880 destroys, cancels, and forever renders null and void the will of 1866, even if it had been the genuine will of A. J. Davis, and the Court will instruct you to that effect.
And after Mr. Keith had testified, the proponents in this case subpoenaed Mr. Knight, and if they thought that Knight would swear that Keith was not the man, why did they not put him on the stand? They ran no risk. He is an honest man. He would tell the truth. I never had the slightest fear in bringing an honest man on the stand. Never. I want facts, and I hope as long as I live that I shall never win a case that I ought not to win on the facts. No man should wish or endeavor to win a case that he knows is wrong.
I say there is not a man on this jury but believes in his heart and soul this minute that this will was made. You have to throw aside the testimony of a perfectly good man, and no matter whether what he said about Erwin Davis to Judge Knowles was true or not--and I must say that I never saw a witness on the stand in my life more eager to tell his story than Judge Knowles was. Never. He was bound to get it in or die.
He answered questions over objections before the Court was allowed to pass upon the objections. Why? Because he is the President of the First National Bank. Now, without saying that he was dishonest about it, I say he was mistaken. Knight never said one word of that kind to him.
It was impossible that he could have said it. So is Mr. Talbot mistaken.
So is Andrew J. Davis, Jr. mistaken, and so is John A. Davis mistaken.
Think of the idiotic idea that a will, not signed, was given to Knight to keep, attested by two witnesses, and not signed by the testator.
Idiotic! Now, as I understand it, gentlemen, you will have to find that that will was made.
Now, what is the next great question in this case, and the question that will be argued at some length, probably, by the other side? And why?
Because it is the first and only point, so far as facts are concerned, that they have won in this case. Just one. And what is that? Our experts said that they thought that the ink was nigrosin ink, and the fact that they wanted a test proves that they were sincere. Their witnesses said they did not think it was nigrosin ink. Mr. Hodges said it had too much lustre, but that there was only one way in which it could be absolutely determined and that was by a chemical test. But, say these gentlemen, or rather said Judge Dixon, "the moment that ink turned red the whole case of the contestants was wrecked." Let us see.
If there had been no logwood ink in existence--not a particle--after the 20th day of July, 1866; if, on the night of the 20th of July, 1866, all the logwood ink on earth had been destroyed and then this ink had turned out to be logwood, why, of course, it would have been a demonstration that this paper was written as far back as the 20th of July, 1866. If it had turned out that it was written in nigrosin ink and that that had only been invented in 1878, it would have been a demonstration that the will was a forgery. But you must recollect the fact that it is written in logwood ink is not only consistent with its genuineness, but consistent with its being a forgery. Why? There was logwood ink in existence in 1890, plenty of it, and if Mr. Eddy wrote this will in 1890, he could have written it in logwood ink; and the fact that it is written in logwood ink does not show that it was written in 1866. Why?
Because there was logwood ink in existence every year since 1866, till now.
Suppose I said that the paper was only ten years old and it turned out that it was forty, is that a demonstration in favor of the other side?
If it turned out to be ten, it is a demonstration on our side.
But if it turned out to be forty, is not that consistent with the genuineness of the instrument, and also with the spuriousness of the same instrument? You can see that. Nobody's smart enough to fool you on that. Nobody. Take the whole question of ink out and the question is still whether Eddy wrote it or not. Take the ink all out and it is still the question whether Job Davis wrote it or not. Absolutely, and all the test proved was, that our experts--some of them--were mistaken about its being nigrosin ink. Mr. Tolman stated that it was impossible to tell without a chemical test; that it looked like nigrosin ink and from the manner in which it seemed to run he thought it was nigrosin ink, but that it was impossible to tell without a test. Mr. Hodges, their expert, said it looked to him like logwood ink; that it had too much lustre for nigrosin, but he added that it was impossible to tell without a chemical test. That is what he said. Mr. Ames said the same thing, and I appeal to you, gentlemen, if Mr. Ames did not have the appearance of an honest, of a candid, and of a fair man. Professor Hagan said that it was nigrosin ink, but he admitted that the only way to know was to test it. And what else? Their own expert, Mr. Hodges, said that logwood ink penetrates the paper. If this ink has been on here twenty-five years it penetrates the paper.