Now, the learned counsel, Mr. Dixon, says that in this case we must
be governed by the probable, by the natural, by the reasonable--three
splendid words, and they should be in the mind of every juror when
examining this testimony. Is it natural, is it probable, is it
reasonable? We have shown that Eddy was the poorest speller in the
business. Whenever they went to a spelling match, at the first fire he
dropped; never outlived, I think, the first volley. And one man by the
name of Sharp distinctly recollects that they gave out a sentence to be
spelled: "Give alms to the poor," and Eddy had to spell the first word,
give; and he lugged in his "u" with both ears--"guive," and he dropped
dead the first fire. The man remembers it because it is such a curious
spelling of give; and if I had heard anybody spell it with a "u" when I
was six years old it would linger in my memory still.
Now, let us take Judge Dixon's test. It is a good one, well stated, and
it is for you to decide whether the misspelled words were misspelled by
a good speller or a poor speller. If you say Job Davis wrote it, then
you are unnatural, unreasonable and improbable.
Isn't it altogether more natural, more reasonable, more probable, to say
that a bad speller misspelled the words than that a good speller did?
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.
What do you think of that? Why is it that John never got any information
from Sconce? Sconce, who saw the will written and who was one of the
attesting witnesses. Why didn't he hear of it from old Downey? Why
didn't he hear of it from the Quigleys or the Dotsons? Why didn't he
hear of it in Salt Creek township, when it was seen and read and read
and read again until I think many of them knew it by heart? And yet
the only person really interested was walking around unconscious of his
great good fortune, and nobody ever told him. There is another thing:
For four months after Andrew J. Davis died nobody told John about the
will. Nearly four months passed away; I think he died on the 11th of
March, 1890, and this will came to John on the first day of July. All
the neighbors knew it. Just as soon as A. J. died, they all said: "John
is coming right into the fortune now" only nobody told John; and the
first man we find with the will is James R. Eddy, and the next man we
find with the will is John A. Davis, the proponent. When John A. Davis
saw this will, leaving him four or five million dollars, it did not take
much to convince him that the signature was genuine. Human nature is
made that way. If it was leaving four or five millions to either of us,
including the sinner who addresses you, the probability is that I would
say, "Well, that looks pretty genuine--pretty genuine." And then if
I could get a few other fellows to swear that it was, I would feel
certain, and say, "That is my money."
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,