There they are, all of them related except Swaim and Duckworth and Taylor; and Duckworth, he is in the tie business along with Eddy.
There is the family tree. All growing on the same tree, and there is a wonderful likeness in the fruit. Why, that Glasgow has as good a memory as Sconce. He remembers that this is the same will he saw--paper like that, and he swears--I think it is Sam Glasgow--that he did not read the contents or see a signature. And yet he comes here, twenty-five years afterwards, and swears it is the same paper. And then the paper was clean and now it is covered with all kinds and sorts of stains.
Now, gentlemen, take the signature of A. J. Davis, and I want you all to look at it. I say it is made of pieces. I say it is a patchwork. It is a dead signature. It has no personality--no vitality in it, and I want you to look at it, and look at it carefully. I say it is made of pieces.
Of course every counterfeit that is worth anything, looks like the original, and the nearer it looks like the original the better the counterfeit. All the witnesses on the side of the proponent who have sworn that it is his signature, also swear that he wrote a rapid, firm hand--nervous, bold, free, and that he scarcely ever took his pen from the paper from the time he commenced his name until he finished; and I want you to look at that name. I will risk your sense; I will risk your judgment--honest, fair and free--whether that is a made signature, or whether it is the honest signature of any human being.
And now, gentlemen, one word more. I contend, first, that the evidence shows beyond all doubt that Job Davis did not write this will. Second, that it is shown beyond all doubt, that James R. Eddy did write this will, and that that evidence amounts to a demonstration. I claim that the will of 1880 was made precisely as E. W. Knight and Mr. Keith swear; that that will was utterly inconsistent with the will of 1866, even if that had been genuine; that it revokes that will, that its provisions were inconsistent, and that afterwards that will was destroyed, and that there is not one particle of evidence beneath the canopy of heaven to show that it was not made and to show that it was not destroyed.
And the Court will instruct you that the will of 1866, even if genuine, is not revived.
This is the end of the case. So I claim that the probabilities, the reason, the naturalness, are all on the side of the contestants in this case--all. And I tell you, that if the evidence can be depended on at all, A. J. Davis went to his grave with the idea that the law made a will good enough for him. Do you believe, if he were here, if he had a voice, that he would take this property and give it to John A. Davis; that he would leave out the children of the very woman who raised him; that he would leave out his other sisters, that he would leave out the children of his sisters and brothers? Do you believe it? I know that not one man on that jury believes it.
This case is in your hands. That property is in your hands. All the millions, however many there may be, are in your hands; they are to be disposed of by you under instructions from the Court as to the law.
You are to do it. And, do you know, there is no prouder position in the world, there is no more splendid thing, than to be in a place where you can do justice. Above everybody and above everything should be the idea of justice; and whenever a man happens to sit on a jury in a case like this, or in any other important case, he ought to congratulate himself that he has the opportunity of showing, first, that he is a man, and second, of doing what in his judgment ought to be done, and there will never be a prouder recollection come to you hereafter than that you did your honest duty in this case. Say to this proponent: "If you wanted to show us that you got this will honestly, why didn't you swear it; if you wanted us to believe it was a genuine will, why didn't you have the nerve to take your oath that it is a genuine will?"
Now, you have the opportunity, gentlemen, of doing what is right. Your prejudice has been appealed to, but I say that you have the manhood, that you have the intelligence, and that you have the honesty to do exactly what you believe to be right; and whether you agree with me or not, I shall not call in question your integrity or your manhood. I am generous enough to allow for differences of opinion. But when you come to make up your verdict, I implore you to demand of yourselves the reasons; to be guided by what is natural; to be guided by what is reasonable. I want you to find that this will was found in the possession of Eddy in April or March, next in the hands of John A.
Davis; and that John A. Davis dare not tell how he came in possession of it. John A. Davis, on the edge of the grave--for this world but a few days, and according to the law without that will he could have had an income of over fifty thousand a year. He was not satisfied with that.
He wanted to take from his own brothers and sisters, wanted to leave his own blood in beggary.
He never saw the time in his life that he could earn five thousand a year--never. And he was not satisfied with fifty thousand--he wanted four and a half millions for himself. .
Gentlemen, I want you to do justice between all these heirs. I want you to show to the United States that you have the manhood, that you are free from prejudice, that you are influenced only by the facts, only by the evidence, and that being so influenced, you give a perfectly fair verdict--a verdict that you will be proud of as long as you live. How would you feel, to find a verdict here that this is a good will, and afterwards have it turn out to be what it is--an impudent, ignorant forgery?
Now, all I ask of you is to take this evidence into consideration. Don't be misled even by a Christian, or by a sinner, for that matter. Let us be absolutely honest with each other. We have been together for several weeks. We have gotten tolerably well acquainted. I have tried to treat everybody fairly and kindly, and I have tried to do so in this address.
I have had hard work to keep within certain limits. There would words get into my mouth and insist on coming out, but I said: "go away; go away." I don't want to hurt people's feelings if I can help it. I don't want anyone unnecessarily humiliated, but I say whatever stands between you and justice must give way; and if you have to walk over reputations--and if they become pavement you cannot help it. You must do exactly what is right, and let those who have done wrong bear the consequences.
Now, gentlemen, I have confidence in you. I have confidence in this verdict. I think I know what it will be. It will be that the will is spurious, and that the will of 1880 revoked it, whether spurious or not.
That is my judgment, and I don't think there is any man in the world smart enough or ingenious enough to get any other verdict from you as long as John A. Davis was afraid to swear that it was an honest will; as long as James R. Eddy, the forger, dare not take the stand; and they will never get a verdict in this world without taking the stand, and if they do take it, that is the end. There is where they are.
Now, all I ask in the world, as I said, is a fair, honest, impartial verdict at your hands. That I expect. More than that I do not ask.
And now, gentlemen, I may never see you again after this trial is over--separated we may be forever--but I want to thank you from the bottom of my heart for the attention you have paid to the evidence in this case and for the patient hearing you have given me.
Note: The Jury disagreed and the case was compromised.
ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL CASE.
* Russell vs. Russell, before Martin P. Grey. V. C., Camden, N. J., June 21, 1899. This was Colonel Ingersoll's last appearance in public. The report of this argument has been made from the stenographer's notes and therefore of necessity incomplete. It was delivered without notes and the proofs were not seen or corrected by the author. No decision in this case has as yet been rendered, August 1, 1900
IF your Honor please: I agree with Mr. Pancoast at least in one remark that he made--I think about the only one--that John Russell is dead. I think there is no controversy about that. But as to the other remarks made and the positions taken by him, I fail to agree.
In the first place, for several hundred years the courts of England, and for more than a hundred years the courts of this country, have very jealously guarded the right of dower; and wherever a woman has by antenuptial agreement given up her right of dower, all the courts have decided--and I know of no exception, and Mr. Pancoast has brought forward none--that at the time she made the contract waiving her dower she must have been in the possession of all of the facts, so that she could act with absolutely full knowledge. And where a man seeks to make an agreement by virtue of which the wife, or the supposed wife, shall waive her dower, decision after decision says that he must tell the truth, and the whole truth, and that it is just as fraudulent to suppress a fact as to manufacture one. He must tell the absolute truth.
The relation of the parties is such, and the dower right is such, that the courts will not take the right away from the woman unless she gives it freely, and, at the time she gives it, knows all the facts bearing upon the question as to whether she should or should not release or waive her dower.
Now, on that same line the courts have taken another step. They do not put upon the wife the burden of showing that the husband was guilty of fraud directly; they simply put the burden upon the wife of showing what his property was and what the consideration was in the agreement; and then the court steps forward and says that if the amount is disproportionate when you take into consideration his wealth, then the burden is immediately shifted, and the person seeking something under his will, or seeking his property, must show that when the woman signed the antenuptial agreement she had been put in possession of all the facts; that she then knew, and knew from him, what he was worth; and that if she did not and the amount in the agreement is disproportionate to his estate, the agreement is null and void. Then gentlemen who represented the heirs of the testator, or the legatees, said: "Well, it was generally known that he was a rich man; that was his reputation in the neighborhood; and she, if she had taken any pains or acted with reasonable discretion, could have ascertained the fact."
The Court then took another step in advance and said that it was not her duty; she was not bound to inquire as to his wealth; and yet Mr.
Pancoast talks as though the maxim of caveat emptor applies in this business--as though it had been a bargain between two sharpers, she making what she could out of his admiration, and he cheapening her to the extent of his power, driving the best possible bargain, saying that she should have looked out for her rights; that she should have investigated and found out about his property; that she should have called in a detective to ascertain what it was, and that the courtship should have been carried on in that commercial spirit.
But the law says: No; she is not obliged to ask a question. She is not obliged to take into consideration any thing that is said in the neighborhood. She relies upon one source for her information, and that is the man whom she is going to marry. And the law says he shall meet her with perfect candor, and there shall pass from his lips nothing but words of truth; and then if, being in full possession of all the truth, she makes the contract, that contract shall stand; otherwise, that it shall not.
There is no use of my quoting these decisions--there is no decision any other way.
The first question that arises is as to the condition of this contract under evidence--this antenuptial contract. Is the amount disproportionate to his estate?
If we are to try this case relying on the notions of Mr. Russell, and say that his opinion shall govern, why, it may be said that Russell imagined that he was generous. That would be astonishing, but hardly as astonishing as the fact that Mr. Pancoast thinks he is generous.
Mr. Pancoast: You don't know me very well.
Mr. Ingersoll: I don't think you would do so badly as that. It may be that Russell imagined that one thousand dollars in stock of some bank was a liberal provision in his will. I don't know whether he did, and I do not care whether he did or not. The question is not for Mr. Russell; it is not a question for Mr. Pancoast, and it is not a question for myself; it is for your Honor to decide. Is the amount mentioned in this antenuptial contract, taken together, if you please, with the fifteen hundred dollars in the will--is the amount made by the addition of the two amounts--disproportionate to this estate?
There is a case here from Illinois, Achilles vs. Achilles (which ought to be a strong case), in which I believe the man was worth seventeen or eighteen thousand dollars; and my recollection is that he provided an annuity of three hundred dollars for his wife, with rent free of a house; also rent free of a vacant lot for a garden. That is what he gave her--what would be about four hundred dollars or five hundred dollars a year; and he had eighteen thousand dollars. The Supreme Court of Illinois thought that amount so disproportionate to the value of the estate that the provision was set aside.
Now, in this case, five thousand dollars or six thousand dollars--we will say five thousand anyhow--is the amount; and there is an estate worth a quarter of a million or, to come even within their own testimony, worth two hundred thousand dollars.
The first question for your Honor to decide is whether that amount is so disproportionate to his estate that--unless the other side show that she was put in possession of all the facts--it must be set aside.
The defendants in this case have not endeavored to show that Mr. Russell ever informed the complainant what he was worth. The only evidence we have on that point is what he said with regard to his poverty--not one word about how much he had, and as to his poverty, only indirectly. And here is the way the old man's mind worked: They were first engaged to be married. Mr. Pancoast believes, or at least he has expressed himself as though he thought, that a man of seventy-five could not be in love (I do not know what his experience is, but I hope no fate like that will overtake me), and that a woman of fifty could not feel the tender flame.
I do not know enough about biology to state with accuracy how that is, but I heard a story once about a colored woman having lived to be one hundred and twenty-five, and a man interested in the question that Mr. Pancoast has raised asked this aged lady how old a woman had to be before she ceased to have thoughts about love?
And the old woman said: "I don't know, honey; you will have to ask somebody older than I is." And I guess that is about the experience of the race.
Mr. Russell said to this woman: "I want to make a contract with you, and I will give you fifteen thousand dollars." She said that was satisfactory, and Russell--having a little Semitic blood in his veins, I guess--said to himself, "I must have offered too much, she accepted so readily." So the next time he saw her he said, "I do not think I can make it more than ten thousand dollars." "Well," she said, "all right; ten thousand dollars will do." In the meantime he was getting a little older, and the last time he came he said he could not make it more than five thousand dollars, because his estate was so entangled that he did not know that he would be able to pay it--that it would be a pretty difficult job to pay that amount within six months. Well, she accepted, and in order that she should accept it, he said that, in addition, he would provide well for her in his will--that he would make a liberal provision. There is the contract. No evidence in the world that he told her what he was worth; the only evidence is that he pleaded poverty.
And right at this point, I say that all the decisions I know of declare the contract void unless the defence, on their part, show that she was put in full possession of all the facts; and that the defence in this case did not do.
Now, so far as this contract is concerned, on the evidence it is void, and void notwithstanding the fact that the trustees paid her five hundred dollars; and Mr. Pancoast, according to my recollection, is mistaken when he says that she demanded the balance. He offered her the balance, and she stated that she had been informed that she had some rights against the estate, and therefore refused to receive it. That is the fact about it. He sent her five hundred dollars, and wanted to send her the balance, but she would not have it. Then he asked her to take it, and showed her a receipt to be signed, in which she waived everything, and she refused to sign it.
Under those circumstances I do not think it is possible for your Honor to say that she has been estopped.
The next point raised by Mr. Pancoast is that the oral agreement to provide well for her in the will is void under the statute of frauds.
Well, I am free to say that I do not know how it is in New Jersey, but in every other State in which I am acquainted with the law, the statute of frauds, to be operative, must always be pleaded. I do not know how it is here. That statute has not been pleaded in this case, and I never heard of it until the argument to-day. If it is to be pleaded before it can be invoked, it is too late to cite it now. But let us go on the supposition that he is right, that the antenuptial contract is void, and that the other contract to provide for her in the will is also void. Then where does that leave us? That leaves us exactly as though no contract had been made. That leaves us without any antenuptial contract, without any agreement to provide liberally for her in the will. Then what is our condition? Then the wife is entitled to her dower in the real estate; that follows as a necessity. She loses her interest in the personalty, because that is given away by the will, but if the antenuptial contract and parole agreement are both dead--one because disproportionate to the estate and because of the fraud of Russell, and the other on account of the statute of frauds, then she is left with her dower in the real estate. It is impossible, it seems to me, to arrive at any other conclusion. It certainly would be inequitable to say that she had been estopped on account of what was done with the five thousand dollars in the hands of the trustees.
There is another view of it. There has been, if the contracts are good, a partial performance; and that of itself would take it out of the statute of frauds.
Then the question is, if it is out of the statute of frauds, and if it is out because the contract has been partially performed, the next question, and, it seems to me, the only question that arises, is, has a court of equity the right to determine what the words "You shall be well provided for," "I will provide for you liberally in my will," or "I will make a liberal provision for you in my will"--what those words mean?
According to the idea of counsel on the other side, the Court is bound to decide according to the meaning that was in the mind of Mr. Russell.
But there comes in here another principle. The only way we can find the meaning in his mind is by finding the words that he used; and we are not to import his meanness into the words, if he had meanness; neither would we import his generosity, if he had generosity. We would give to those words their natural meaning, apart from the thought of the one who used them, and apart from the thought of the one who heard them, because the words are known, their meaning is known and can be ascertained by the Court.
Now, the word "reasonable" is about as hard a word to define as a court was ever called upon to define, and yet courts of law and courts of equity, in hundreds and thousands of instances, have passed upon the meaning of the word "reasonable," and have not only passed upon its meaning, but have given it from time to time definitions.
A man must give reasonable care to the property of another given into his keeping. Well, what is reasonable care? Is it reasonable for him to take such care of it as he does of his own? Not if he is unreasonably careless of his own. And the law takes another step, and says you must take such care of it as is reasonable, as a reasonable man would, and the courts then go on to define what a reasonable man under the circumstances would do. Now, there is no word in the language that courts have been called upon to define that is vaguer--where the line between dawn and dusk, between light and dawn, has to be drawn with greater care or greater intelligence--than that word "reasonable."
The word "appropriate" has been decided again and again. The word "necessary," the word "convenient," the word "suitable"--"suitable to his or her condition in life"--"suitable to the condition of the party"--all these words have been given judicial meaning hundreds and thousands of times.