And now we come to the word "liberal," is that a hard word to define?
Everybody in the world has his notion of what liberal means. Given the circumstances and the actions of the man, and everyone you meet is ready to decide whether he is liberal or illiberal. A man loses his pocketbook; five thousand dollars in it; a boy finds it, returns it to him, and he gives the boy five cents. There is not a man in the world, no matter whether he is a judge or not, who would say that was liberal--nobody. If there was only a dollar in the pocketbook and he gave him half of it, you would say that was liberal. You would have to take the circumstances into consideration. You also take into consideration the circumstances of the man who found it. If he is a poor man you can not be liberal unless you give him more than you would give the man who did not need it.
What is a liberal provision for a wife that has no means of making her own living? If the man is able, nothing less than a sufficient sum to take care of her. Suppose Mr. Vanderbilt, who is worth two or three hundred millions--I do not know what he is worth, and I do not care, but I suppose he is worth a hundred millions--should agree to make a liberal provision for his wife, and make it so that he gets away from the statute of frauds, and thereupon leaves her twenty-five hundred dollars.
Nobody would say that was liberal. Why? Because that word is capable of a clear and reasonably exact definition. To be liberal, he would have to leave her enough to live in the same style that she has been living in with him, and enough to keep her during her life. Anything less than that would be illiberal, mean, contemptible.
So I might go through all the actions of men in regard to contracts, payments, divisions. We all know what liberal means, and it always means a little more than the law could compel you to do. If a man hires another and says, "I will give you five dollars a day," and the other works twenty days, and he gives him one hundred dollars; nobody says he is liberal, and nobody says he is mean. But when the man goes further and says, "You have worked well; I am very much pleased with what you have done; there is fifty dollars (or twenty-five dollars) as a present," everybody says, "Why, that is liberal, that is generous." But no man ever yet got the reputation of being generous by doing exactly what he was bound to do. He may have the reputation of being just, honest, of keeping his contracts, of being a good, fair, square man, but he never got the reputation of being generous, and he never got the reputation of being liberal, by simply doing what the law compelled him to do, or what his contract compelled him to do, or what he did in consideration of that for which he had received value.
In this case Russell said, "I will make a liberal provision for you in my will." If he had made no will the law would have given her one-third of his personal property. That would not have been liberal. That would simply have been the law. That is the law, and that is what the law has said is just. Whether the law is right or not, I do not know, but that is what the law says. That is just, and no man can be liberal unless he goes just a little beyond justness--just a little.
So when he says, "I will provide for you liberally in my will," in order to comply with that agreement he has got to go somewhat beyond the law, and the law says one-third; it is impossible for him to be liberal without going a little beyond one-third, and then he is only liberal to the extent that he does go beyond what the law fixes.
Now, it seems to me that there is no escape from that. Neither does it seem to me that there is the slightest difficulty in your Honor fixing what is liberal--no more difficulty than you would have in saying what is right; and we have hundreds of cases where a man has said, "If you will do so and so I will do what is right," and it has been enforced--has been enforced thousands and thousands of times. "I will do what is right," "I will do what is just," "I will do what is liberal,"
"I will do what is necessary and proper"--all these words have been judicially determined and their meaning fixed by hundreds and thousands of decisions. I do not see the slightest trouble in that.
So, in this case, looking at the parole contract as bad--and it is bad--the woman is at the very least entitled to her dower; and the only way that she can be robbed of it is by holding that a contract is good which was made by her without any knowledge of the value of the property that he held. But every decision says that makes the contract void, and that she is not bound to make examination herself; he is bound to give her that information. The law says that when two hearts come together in that way, and there is supposed to be affection, they must be candid. He must conceal nothing. His hands must be open; not only must what he says be the truth, but he must tell it all, and she cannot be bound by any contract that she does not make in the full blaze of all the facts. She must have them all, and if he keeps back any, if he makes himself poorer than he is, he destroys the contract. If he tries to take advantage of her the law says he only takes advantage of himself. The Court is her attorney; the Court appears for her for the preservation of her dower right; and the Court will not allow a man to take advantage of any misstatement, of any suppression, of any fraud, no matter whether active fraud, or a fraud that rests in non-action. The Court is her attorney and says the contract is bad, and if you try to deceive her you deceive yourself; and if you fail to put her in possession of all the facts the consideration of the contract fails and it is dead and done.
If these decisions have any meaning, that is the law, and if there is a decision on the other side, I should like to hear it. I haven't found one, not one; and in all the cases where applications have been made to set aside an antenuptial contract, I have not found one where the disproportion was as great as it appears in this case. The difference is between six thousand five hundred dollars and an estate of a quarter of a million. I have not found one that had anywhere near that disproportion, and yet case after case is set aside on the disproportion of about four hundred dollars or five hundred dollars a year and the fortune of eighteen thousand dollars--one where it is thirty thousand and she gets about five hundred dollars. I do not know of a solitary case where the deception was as great as in this. I do not say that he intentionally deceived, because I do not know, and, as Mr. Pancoast remarked, he is dead. We simply go on the facts that are shown.
Now, as to the value of the property, I do not think there is any real dispute about that. Mr. Russell is one of the executors, and when he went over the real estate here on the stand he had in his hand a list of all that real estate, with the values put upon it by our two witnesses; and he was asked the value, and he looked at the parcel, and he looked at the amount, and I tried it here myself, just to see if I could guess what his answer would be. I deducted in my own mind fifty per cent, sometimes, sometimes thirty per cent., sometimes forty per cent., and I hit it within five dollars in fifteen cases, just guessing by myself what he would say, because I knew that he was going by the figures without the slightest reference, in many cases, to what the property was worth. He estimated one parcel at two thousand two hundred dollars; I think it was worth about five thousand dollars. He fixed another at three thousand two hundred and fifty dollars; I think it is worth about five thousand dollars. He fixed a third at four hundred dollars; I think it is worth about six hundred dollars. When he was asked about those same parcels, without the figures he sometimes went beyond the price that our experts had fixed; sometimes he doubled his own price, and sometimes he fell below his price. I think in one or two instances he even fell below; but that at the time he had in his mind, any knowledge apart from the figures that had been made by the experts, I do not believe.
The Vice Chancellor: Is it of any significance? If your argument is right the disproportion is so great that it makes no difference.
Mr. Ingersoll: Perhaps not. Then his co-executor was not called at all.
So I take it that we can safely say that the property was worth in all two hundred thousand dollars, taking it according to their own estimate.
The estimate of the man who fixed it on account of the inheritance tax, I do not think is of any weight. He did not go over it all and did not see it. I say the disproportion is so great--they having failed to show that the knowledge was in her possession, put there by him--that the contract must be set aside. That we insist upon.
One of two things has to be done, it seems to me: Both those contracts set aside and her dower in the real estate given to her, or both contracts allowed to stand and the court to fix what is a liberal provision in the will--and in that, for one, I see no difficulty.
"Liberal" is a word as easily understood at least as the word "reasonable"--certainly as the word "necessary," certainly as the word "convenient," certainly as the word "suitable," and in fact I might say as almost any other word except some scientific term that limits its own definition.
Now, we have already said that a liberal provision could not be less than the law gives us. In that view of the case, she should have, in lieu of her dower, the five thousand dollars, and, on account of the will she should have at least whatever one-third of the personal property is worth.
It seems to me that one of those two courses must be pursued. Here is an old man who wants to get a woman some twenty-five years younger than he is. Just think how Mr. Pancoast's blood would throb at a woman twenty-five years younger than he. Think what visions would haunt his brain. Think of the Cupids that, with outstretched wings, would follow in the darkness of the night as he contemplated his happiness. Here was a man of that age who wanted this woman, and taking into consideration his ideas of money--a man that considered a thousand dollars a liberal provision; one worth two hundred and thirty thousand dollars or two hundred and forty thousand dollars, offering her five thousand dollars--he wanted her badly. You can hardly think of a more wonderful thought visiting his brain than that of giving all that money for a woman nearly twenty-five years younger than himself.
I want to be kind to Mr. Russell; I want to say that he was honestly in love with this woman. I want to be respectful to her by saying that the affection was reciprocated, and that on her part it was absolutely honest. But I do say that Mr. Russell withheld from her the information as to his property. Mr. Russell endeavored to drive the best bargain he could, and I say that by keeping back the facts that he was bound to make known to her, he defeated himself--that while he did deceive her, he destroyed his contract.
Now, by no way of reasoning I can think of can you arrive at any different conclusion. All matters of this kind, of course, should be dealt with from a high standard, the highest standard we have, the very highest. The affection that man has for woman is, in my judgment, the holiest and the most beautiful thing in nature; the affection that woman has for man--that affection, that something that we call love--has done all there is of value in the world. It has civilized mankind; made all the poems, painted all the pictures, and composed all the music. Take it from the world and we shall be simply wild beasts--far worse than wild beasts, for they have affection for each other and for their young.
So I say this should be treated from the highest possible standpoint, and treating it in that way your Honor must say that a woman must act with a full knowledge of every fact that had any bearing upon the question to be decided by her; and if she was not put in possession of all of these facts, by the man who said he loved her, then the contract is void.
On the other hand, if the contract is held valid, and with it the agreement to provide liberally for her in his will, then I say that there can be no liberality that does not go beyond the law. In the one case she is entitled to five thousand dollars and one-third of the personalty, and in the other case she is entitled to her dower.