Part 49

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.

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.