Part 46

Let us stick to his standard, and see if Eddy spelled give "guive"--and, gentlemen, you cannot find in all the writing of James R. Eddy, written before he was charged with this forgery, where the word give appears, that it is not written with a "u"--I defy you to find a line in the world where "given" is "guivin." Now, let us go another step. Everybody admits that he was a poor speller, and is it not more reasonable to say that he wrote the will on the spelling, than that the champion speller did? We have some more evidence on Mr. Eddy as good as anything I have stated.

Now, do not be misled because I am a sinner. Let us stick to the facts. William H. Davis testified to the spelling of Eddy, and while he testified, held in his hand a will that he had seen James R. Eddy write. In this will there were twenty words misspelled; shall, "shal" and in the James Davis will, shall "shal." Good! Whether, in our will "wherther"; in the other will, "wherther"--just the same; sheet of paper, "sheat" in our will; "sheat" in the other will; in our will "guive," in that "guive." Did Job Davis rise from the dead and write another will? Was one copied from the other, and the copy so slavish that it was misspelled exactly the same? You cannot say it was entirely copied, for now and then a word, by accident, is right.

Judge Dixon tells you that Eddy did not disguise his spelling. Good Lord! How could he disguise his spelling? He spelled as he thought was right. No man of his education would think of disguising his spelling. He knows how to spell give; he believes it is with a "u" still There is a prejudice against "u" since he was charged with forgery, and so he has dropped it; but he thinks it is right, nevertheless. Now, isn't it perfectly wonderful, is it not a miracle, that James R. Eddy made exactly the same mistakes in spelling and writing one will that Job Davis did in writing another?

Isn't it wonderful beyond the circumference of belief, that a good speller and bad speller happened to misspell the same words? It won't do. There is something rotten about this will, and the rotten thing about it is that James R. Eddy wrote it, and he wrote it about March, 1890. That is when he wrote it, and he let the proponent in this case have it. We will get to that shortly. So, gentlemen, I tell you that every misspelled word is a witness in our favor. There is something more. Eddy uses the character "&" in writing, instead of writing "and." The will is full of them; and it is stated that sometimes when he endeavors to write out the word "and" he only gets "an," and that peculiarity is in this will. "An" for "and"; that you will find in the seventeenth line in the last word of the line. Colonel Jacques swore that one of Eddy's misspelled words was the word "judgment"; that he put in a superfluous "e," and in this case here is "judgement"--"shall give the annuity that in the judgement of the executors shall be final;" there is the superfluous "e"--judgement. Now, there is another. Their witnesses swore that as a rule he turns the bottom of his "y's" and "g's" to the left. Now, you will find the same peculiarity in this will, and the amusing peculiarity that he turns the "g's" a little more than he does the "y's." I don't want these things answered by an essay on immutable justice. I want them to say how this is. Another thing, how he makes a "t," with a little pot hook at the top, and that hook has caught Mr. Eddy. You will find them made in the will, exactly, where the "t" commences a word--where it is what we call the initial letter. And what else? When he makes a small "e" commencing a word, he always makes it like a capital "E," only smaller. That is the testimony, and that happens in this will and it happens in the papers and letters.

Now, I say, that all these peculiarities taken together, the same words misspelled, the same letters used interchangeably, the same mistakes in punctuation, the same mistakes in the words themselves--all these things amount to an absolute demonstration. So, I told you, he uses the capital "I" with the word "is" and that he does twice in this will.

Here are hundreds, almost, of witnesses that take the stand and swear that Eddy is the author of that will. He wrote it--every word of it. He negotiated with John A. Davis for it, and I will come to that after a little. And how do they support this will that has in it the internal evidence that it was written by James R. Eddy? Why do I say it is impossible that he should have written it, and the will should be genuine? Because at the date of that will, or the date it purports to bear, Eddy was only eight years old. And we don't know the real date, gentlemen, of that will yet. My opinion is that it was dated by mistake, so that it came on a date that Davis was not there, or came on a day that was Sunday, and then they folded up that will, and scratched it and rubbed it until the date is absolutely illegible, and nobody can say whether it is June, July, or January. There was a purpose. The day may have been Sunday, or they may have afterward ascertained that he was not there. It is a suspicious circumstance that the day is left loose so they can have a month to play on, maybe more. Now, they say, can you impeach Sconce?

Every misspelled word in the will impeaches Sconce, ever; period impeaches Sconce, every "a" that is used as "o" impeaches him, and "o" as "u"; every "b" that is made like an "h" impeaches him, every "h" that is made like a "b" impeaches him.

In other words, every peculiarity of James R. Eddy that appears in that will impeaches J. C. Sconce, Sr.--Captain Sconce. There is a thing about this will which, to my mind, is a demonstration. It may be that it is because I am a sinner, but I find, and so do you find it in the second initial of Sconce, in the letter "C." There are two punctures, and you will find that exactly where the punctures are there is a little spatter in the ink--a disturbance of the line, in the capital first; in the small "c" there is another puncture and another disturbance of the line. Professor Elwell says that these holes were made afterwards. Let's see. There is a hole, and there is a splatter and a change of the line. There is another hole and there is another change. There is another hole and there is another change. What is natural? What is reasonable? What is probable? It is that the hole being there, interrupted the pen, and accounts for the diversion of the line, and for the spatter. That is natural, isn't it? but they take the unnatural side. They say that these holes were made after the writing. Would it not be a miracle that just three holes should happen to strike just the three places where there had been a division of the line and a little spatter of the ink? Take up your table of logarithms and figure away until you are blind, and such an accident could not happen in as many thousand, billion, trillion, quintillion years as you can express by figures.

Three holes by accident hitting just the three places where the pen was impeded and where the spatters were. Never such a thing in the world. It might happen once. Nobody could make me believe that it happened twice--that is, a hole might happen to get where the pen was interrupted once; as to the second hole, I would bet all I have on earth, as to the third hole, I know it did not. I just know it did not. And yet Mr. Elwell says that these holes were made afterwards, and he goes still further, and says that there is not any trouble in the line. If anybody will look at it, even with the natural eye, they can see that there is; and, in a kind of diversion, they called Professor Hagan, when he called attention to it, Professor Pin-holes and pin-hole expert. He might have replied that that was a pin-head objection.

Professor Elwell accounts for all the dirt on this will by perspiration, all on one side and made by the thumb, and although there were four fingers under it at the same time, the fingers were so contrary they wouldn't perspire. This left the thumb to do all the sweating. I need not call him a professor of perspiration, for that throws no light on the subject; but I say to you, gentlemen, that those marks, those punctures, were in that paper when Sconce wrote his name. Sconce says they were not--he remembered. He has got a magnificent memory. I say that even that shows that he is not telling the facts.

Now, what else? We went around among the neighbors. He was charged with passing counterfeit money, with stealing sheep, with stealing hogs, with stealing cattle and with stealing harness.

Mr. Woolworth. It was not proved that this man was accused of counterfeiting, of passing counterfeit money.

Mr. Ingersoll. I tell you how I prove it. A man by the name of Lanman was on the stand. He swore he was acquainted with Sconce's reputation. Colonel Sanders asked him who he had ever heard say anything about it. He said Lewis Miller and Abraham Miller and a man by the name of Hopkins and several others. What did they say? I asked them afterwards, and among other things I recollect he was charged with passing counterfeit money, stealing hogs, stealing sheep, stealing harness, killing another man's heifer in the woods. I don't think I am mistaken, but if I am I will take counterfeit money back. I won't try to pass counterfeit money myself, although a sinner.

Mr. Woolworth. (Interrupting): He was not charged with killing a heifer.

Mr. Ingersoll. No, no; the heifer was there. I have a very good memory; I suppose it comes from the habit of taking no notes. Lanman was the man, and while we are on Sconce there is a thing almost too good to be passed.

Mr. Jackson was on the stand, Senator Sanders asked him, "Whoever told you anything against him?" "Well," Jackson answered, "I asked Hopkins--" "Who else?" "Well," he said, "I had a private conversation, I don't like to tell." "You have got to tell." Mr. Jackson said to the Court: "Must I tell; it was a private conversation." "You must tell." "Well," he said, "it was with Mr. Carruthers, one of the counsel for proponent;" and he said that what Mr. Carruthers said had more influence upon him than anything else, because Carruthers was in a position to know.

Mr. Sanders. (Interrupting). Were those his exact words?

Mr. Ingersoll. Yes, that he was an attorney. I tell you that was a death-blow; that came like thunder out of a clear sky, when you haven't seen a cloud for a month.

Besides that he was impeached in open court. What else? The witnesses that came to the rescue of Sconce; how did they rescue him? They lived down there and never heard anything against him. All these rumors, thick in the air, the bleating of sheep following him wherever lie went; the low of cattle and yet these people never heard it. Tried for stealing harness, they never heard of it They were not acquainted with him. They said that they had some personal dealings with him and he was all right and one man endeavored to draw a distinction between truth and honesty. A man could be a very truthful man and a very dishonest man. Just think of that distinction, a man of truth but dishonest. That won't do. Even Senator Sanders said: "Some accusations, probably a dozen," to use his excellent language--what memories we have! Let me read the exact words: "Some accusations; probably a dozen or more, of stealing sheep and hogs _lit on_ Sconce."

Mr. Sanders: I didn't say that.

Mr. Ingersoll. I don't insist; but those are the exact words I remember. And don't you remember that he went into a kind of homily on neighborhood gossip, that hardly anybody escaped? I believe a good many of this jury have escaped and a good many in this audience have escaped. You can pick out a great many men that a dozen accusations of stealing hogs and sheep and heifers have not lit on.

Then, there is another thing about Sconce that I don't like, gentlemen. Sconce, in giving the history of the affair in Arkansas, was asked if he didn't say, "Did I say that Davis' name was on it when I signed it?" and right there he skulked and stated under oath that when he said that he alluded to the photograph. Could he by any possibility have alluded to the photograph when he said: "Did I say that Davis's name was on it when I signed it?" Did he ever sign the photograph? No; he never signed the photograph. Davis never signed the photograph, and if he ever said those words he said them with reference to the original will, and he knows it. And yet, in your presence, under oath, he pretended that when he made that remark he alluded to the photograph. I wish somebody would reply to that and tell us whether, as a matter of fact, he alluded to the photograph.

Now, Mr. Sconce, as you know, has the most peculiar memory in the world. He remembers things that had nothing whatever to do with the subject, photographed in all details, everywhere; and yet, gentlemen, your knowledge of human nature is sufficient to tell you that that kind of memory is not the possession of any human being.

Thousands of people imagine that detail in memory is evidence of truth. I don't think it; if there is something in the details that is striking, then there is; but naturalness, and, above all, probability, is the test of truth. Probability is the torch that every juryman should hold, and by the light of that torch he should march to his verdict. Probability! Now, let us take that for a text. Probability is the test of truth. Let us follow the natural, let us follow the reasonable.

At the time they say this will was made, Andrew J. Davis had removed from Iowa years before; had settled, I believe, in Gallatin county. His interests in Iowa were nothing compared with his interests in this Territory at that time. From the time he left Iowa he began to make money; I mean money of some account. He began to amass wealth. He was, I think, a sagacious man.

Judge Dixon says that he was a man of great business sagacity. I am thankful for that admission. In a little while he became worth several hundreds of thousands of dollars. Afterwards he acquired millions. Now, during all that time, from the 20th of July, 1866, up to the day of his death, he never inquired after the James Davis will. It is a little curious he never wrote a letter to James Davis and said, "Where is the will, have you got it?" Not once. They have not shown a letter of that kind, not a word. Threw it in the waste-basket of forgetfulness and turned his face to Montana. Years rolled by, he never wrote about it, never inquired after it.

They have brought no witnesses to show that A. J. Davis ever spoke of the will; not a word. Gentlemen, let us be controlled by the natural, by the reasonable, by the probable.

In 1868 one of the executors died--Job Davis. I think Colonel Sanders said that if a man of Judge Davis's intelligence, knowing what a difficult thing a will is to write, should have allowed Mr. Knight, a Kentucky lawyer, to draw his will, who had not had much practice, why, he is astonished at that, and in the next breath tells you that Andrew J. Davis employed a twenty-two year old boy who could not spell "give" to draw up his will in 1866. Isn't it wonderful what strange things people can swallow and then find fault with others! Now, remember:

In 1868 Job Davis died; then there was only one executor to that will. A. J. Davis went on piling up his money, thousands on thousands. Greed grew with age, as it generally does. Gold is spurned by the young and loved by the old. There is something magnificent after all about the extravagance of youth, and there is something pitiful about the greed of old age. But he kept getting money, more and more, and in '85 he had sold the Lexington mine. He was then a millionaire. In '85, I think. They say he sold that mine in '81, maybe he was then a millionaire. There was the will of '66 down in Salt Creek township, used as a model for other wills, for the purpose of teaching the neighbors spelling and elocution, to say nothing of punctuation. They got up little will soirees down there--will parties--and all the neighbors came in and Mrs. Downey read it aloud and wept when she thought it was the writing of her brother Job. That accounts for the tear drops, I suppose; the round spots on the will. 1885; Andrew J. Davis worth millions. Then what happened? Then James Davis, the other executor, died. Then there was a will floating around down in Salt Creek township, sometimes in a trunk, sometimes in a box, other times in an old envelope, other times in a wrapper, and when I think of the shadowy adventures of that document it makes me lonesome. James is dead, poor Job nothing but dust; a will down there with no executors at all; and A. J. Davis did not know in whose possession it was, and never wrote to find out. Let us be governed by the natural, gentlemen, by the probable. Never found out, never inquired, and after James Davis died he lived four years more. I think James Davis died on the 5th of December, 1885, then he lived a little more than three years after he knew that both executors were dead and did not know whether the will existed or not. Judge Dixon tells us perhaps if he had made a will before he died it would have been different from this. I think perhaps it would. What makes him think that it would have been different? If that will existed in Salt Creek township he knew it, and he knew it in 1885, 6, 7, 8, 9, and when death touched with his icy finger his heart he knew it then, and if he made that will in '66, it was his will when he died unless it had been revoked. He knew what he was doing.

I tell you there was no will down in Salt Creek township at all; there wasn't any here. There have been a good many since. Now, where is the evidence that he ever thought of this will, that he ever spoke of it?

What else? He appointed three executors of his will, that is, in '66, if he made it, and in that he provided that a like maintenance should be given to Thomas Jefferson, Pet Davis and Miss Bergett, all three of Van Buren County, State of Iowa. What else did he say? That the executors should have the right of fixing that amount, and whatever amount in their judgment should be fixed should be final. What is the legal effect of that? The legal effect of that is that the estate could not have passed to John A. Davis until the last who had a life interest was dead. The proceeds could have been taken, every cent of them, from that estate and given to the three persons for life maintenance, and the youngest of those persons was four years old. John A. Davis would have had to wait seventeen years. And do you think that A. J. Davis ever made a will like that, putting it into the power of two executors to divert the entire income to certain persons and that there could be no division until they were all dead.

Now, another improbability. Recollect, all the time, that we are to be governed by reason and naturalness. Now, then, it was claimed that Judge Davis held certain relations with a certain Miss Caroline Bergett. It was claimed that a daughter known as Pet Davis was his. It was also claimed that a boy, Thomas Jefferson Davis, was his son. Nobody tells the truth in this will although it has been alluded to and argued as well, I think, as could be. There is this trouble in the will that though the boy Jeff was never in Van Buren County until he was twelve years old--was never there until six years after the will was dated, yet his supposed father describes him as of Van Buren County.

Next, Miss Caroline Bergett had married a man by the name of W. V. Smith in 1853, and in 1858, W. V. Smith took his wife and children and moved to Texas--eight years before this will was made, and yet A. J. Davis forgot her name, forgot her residence, forgot the residence of the boy that was imputed to him; that of itself is enough to show that he was not present when the will was made. If there is anything on earth that he would remember this is it, and you know it. Although Mrs. Downey could not remember when she was married or when her first child was born, she does remember the time it took her to dust the room where there was a clothes-press, a table and three or four chairs. She recollects that.

Another improbability:

John A. Davis, the proponent, had charge of the Davis farm down in Iowa and stayed there for six years after this alleged will was made, and although he was acquainted with the Quigleys, the Henshaws, the Sconces, and all the aristocracy of the neighborhood, he says he never heard of the existence of this will which so many people of that section talked about. What a place for keeping secrets!

Senator Sanders says that the reason Judge Davis made his will in Salt Creek township was because in that township they knew about this woman or these women and these children, and he didn't want to go into any other community and make his will.

Any need of publishing his will? Any need of reading any more than the attesting clause to the attesting witnesses? Any need to divulge a line? None. Ah, but Senator Sanders said that he wanted to keep the secret. That is the reason he left the will upon that table and rode away in a debonnair kind of style on his roan horse with the bobtail, leaving a congregation of Salt Creek loafers to read his will. He wanted to keep it secret; hoped that it would never get out. Imagine the scene, Job Davis writing the will; Mrs. Downey with a duster tucked under her arm like the soubrette in a theatre. Well, when he was writing the will she was looking over his shoulder and read the will as fast as he wrote it. That makes me think of the fellow who was writing a letter and there was a man looking over his shoulder, so he said: "I would write more but there is a dirty dog looking over my shoulder," and the fellow said: "You are a liar."

Everybody read it. Mrs. Downey read it; she read it as Job wrote it; then he read it aloud; and then he went and got Sconce and read it again; then in comes Glasgow and he read it. I think Mrs. Downey must have read this will ten or twelve times.

Mr. Myers. She said twenty-five.

Mr. Ingersoll. Oh, yes; twenty-five, because it was in Job's handwriting; and whenever the twilight crept around the farm bringing a little sadness, a little pathetic feeling, she would light a candle and hunt the will, and read it just to think about Job. She would see the words "guive" and "wherther" and all that brought back Job, and she used to wonder "wherther" he was in Paradise or not.

Now, John A. lived down there and knew all these people and never heard of that will.