{
  "schema": "tga.work.v1",
  "identifier": "dresden:vol-10:russell-case",
  "slug": "russell-case",
  "title": "Argument Before the Vice-Chancellor in the Russell Case",
  "subtitle": "Russell vs. Russell, Camden, N.J., June 21, 1899.",
  "excerpt": "Ingersoll's last public appearance — a chancery argument in Russell vs. Russell, delivered without notes in Camden, New Jersey, on June 21, 1899, one month before his death.",
  "year": 1899,
  "volume": 10,
  "category": "Legal",
  "author": {
    "name": "Robert G. Ingersoll",
    "wikidata": "Q360326",
    "viaf": "44331023"
  },
  "isPartOf": {
    "title": "The Works of Robert G. Ingersoll",
    "edition": "Dresden Edition",
    "publisher": "C. P. Farrell",
    "year": 1900
  },
  "license": "https://creativecommons.org/publicdomain/mark/1.0/",
  "url": "https://thegreatagnostic.com/works/russell-case/",
  "wordCount": 4897,
  "body": "• Russell vs. Russell, before Martin P. Grey. V. C., Camden,\n    N. J., June 21, 1899. This was Colonel Ingersoll's last\n    appearance in public. The report of this argument has been\n    made from the stenographer's notes and therefore of\n    necessity incomplete. It was delivered without notes and the\n    proofs were not seen or corrected by the author. No\n    decision in this case has as yet been rendered, August 1,\n    1900\n\nIF your Honor please: I agree with Mr. Pancoast at least in one remark\nthat he made—I think about the only one—that John Russell is dead. I\nthink there is no controversy about that. But as to the other remarks\nmade and the positions taken by him, I fail to agree.\n\nIn the first place, for several hundred years the courts of England,\nand for more than a hundred years the courts of this country, have\nvery jealously guarded the right of dower; and wherever a woman has by\nantenuptial agreement given up her right of dower, all the courts\nhave decided—and I know of no exception, and Mr. Pancoast has brought\nforward none—that at the time she made the contract waiving her dower\nshe must have been in the possession of all of the facts, so that she\ncould act with absolutely full knowledge. And where a man seeks to make\nan agreement by virtue of which the wife, or the supposed wife, shall\nwaive her dower, decision after decision says that he must tell the\ntruth, and the whole truth, and that it is just as fraudulent to\nsuppress a fact as to manufacture one. He must tell the absolute truth.\nThe relation of the parties is such, and the dower right is such, that\nthe courts will not take the right away from the woman unless she gives\nit freely, and, at the time she gives it, knows all the facts bearing\nupon the question as to whether she should or should not release or\nwaive her dower.\n\nNow, on that same line the courts have taken another step. They do not\nput upon the wife the burden of showing that the husband was guilty of\nfraud directly; they simply put the burden upon the wife of showing what\nhis property was and what the consideration was in the agreement;\nand then the court steps forward and says that if the amount is\ndisproportionate when you take into consideration his wealth, then the\nburden is immediately shifted, and the person seeking something under\nhis will, or seeking his property, must show that when the woman signed\nthe antenuptial agreement she had been put in possession of all the\nfacts; that she then knew, and knew from him, what he was worth; and\nthat if she did not and the amount in the agreement is disproportionate\nto his estate, the agreement is null and void. Then gentlemen who\nrepresented the heirs of the testator, or the legatees, said: \"Well, it\nwas generally known that he was a rich man; that was his reputation\nin the neighborhood; and she, if she had taken any pains or acted with\nreasonable discretion, could have ascertained the fact.\"\n\nThe Court then took another step in advance and said that it was not\nher duty; she was not bound to inquire as to his wealth; and yet Mr.\nPancoast talks as though the maxim of caveat emptor applies in this\nbusiness—as though it had been a bargain between two sharpers, she\nmaking what she could out of his admiration, and he cheapening her to\nthe extent of his power, driving the best possible bargain, saying\nthat she should have looked out for her rights; that she should have\ninvestigated and found out about his property; that she should have\ncalled in a detective to ascertain what it was, and that the courtship\nshould have been carried on in that commercial spirit.\n\nBut the law says: No; she is not obliged to ask a question. She is\nnot obliged to take into consideration any thing that is said in the\nneighborhood. She relies upon one source for her information, and that\nis the man whom she is going to marry. And the law says he shall meet\nher with perfect candor, and there shall pass from his lips nothing but\nwords of truth; and then if, being in full possession of all the truth,\nshe makes the contract, that contract shall stand; otherwise, that it\nshall not.\n\nThere is no use of my quoting these decisions—there is no decision any\nother way.\n\nThe first question that arises is as to the condition of this\ncontract under evidence—this antenuptial contract. Is the amount\ndisproportionate to his estate?\n\nIf we are to try this case relying on the notions of Mr. Russell, and\nsay that his opinion shall govern, why, it may be said that Russell\nimagined that he was generous. That would be astonishing, but hardly as\nastonishing as the fact that Mr. Pancoast thinks he is generous.\n\nMr. Pancoast: You don't know me very well.\n\nMr. Ingersoll: I don't think you would do so badly as that. It may be\nthat Russell imagined that one thousand dollars in stock of some bank\nwas a liberal provision in his will. I don't know whether he did, and I\ndo not care whether he did or not. The question is not for Mr. Russell;\nit is not a question for Mr. Pancoast, and it is not a question for\nmyself; it is for your Honor to decide. Is the amount mentioned in this\nantenuptial contract, taken together, if you please, with the fifteen\nhundred dollars in the will—is the amount made by the addition of the\ntwo amounts—disproportionate to this estate?\n\nThere is a case here from Illinois, Achilles vs. Achilles (which ought\nto be a strong case), in which I believe the man was worth seventeen or\neighteen thousand dollars; and my recollection is that he provided\nan annuity of three hundred dollars for his wife, with rent free of a\nhouse; also rent free of a vacant lot for a garden. That is what he gave\nher—what would be about four hundred dollars or five hundred dollars\na year; and he had eighteen thousand dollars. The Supreme Court of\nIllinois thought that amount so disproportionate to the value of the\nestate that the provision was set aside.\n\nNow, in this case, five thousand dollars or six thousand dollars—we\nwill say five thousand anyhow—is the amount; and there is an estate\nworth a quarter of a million or, to come even within their own\ntestimony, worth two hundred thousand dollars.\n\nThe first question for your Honor to decide is whether that amount is so\ndisproportionate to his estate that—unless the other side show that she\nwas put in possession of all the facts—it must be set aside.\n\nThe defendants in this case have not endeavored to show that Mr. Russell\never informed the complainant what he was worth. The only evidence we\nhave on that point is what he said with regard to his poverty—not one\nword about how much he had, and as to his poverty, only indirectly. And\nhere is the way the old man's mind worked: They were first engaged to be\nmarried. Mr. Pancoast believes, or at least he has expressed himself as\nthough he thought, that a man of seventy-five could not be in love (I\ndo not know what his experience is, but I hope no fate like that will\novertake me), and that a woman of fifty could not feel the tender flame.\nI do not know enough about biology to state with accuracy how that is,\nbut I heard a story once about a colored woman having lived to be one\nhundred and twenty-five, and a man interested in the question that\nMr. Pancoast has raised asked this aged lady how old a woman had to be\nbefore she ceased to have thoughts about love?\n\nAnd the old woman said: \"I don't know, honey; you will have to ask\nsomebody older than I is.\" And I guess that is about the experience of\nthe race.\n\nMr. Russell said to this woman: \"I want to make a contract with you,\nand I will give you fifteen thousand dollars.\" She said that was\nsatisfactory, and Russell—having a little Semitic blood in his veins,\nI guess—said to himself, \"I must have offered too much, she accepted\nso readily.\" So the next time he saw her he said, \"I do not think I can\nmake it more than ten thousand dollars.\" \"Well,\" she said, \"all right;\nten thousand dollars will do.\" In the meantime he was getting a little\nolder, and the last time he came he said he could not make it more than\nfive thousand dollars, because his estate was so entangled that he did\nnot know that he would be able to pay it—that it would be a pretty\ndifficult job to pay that amount within six months. Well, she accepted,\nand in order that she should accept it, he said that, in addition, he\nwould provide well for her in his will—that he would make a liberal\nprovision. There is the contract. No evidence in the world that he told\nher what he was worth; the only evidence is that he pleaded poverty.\n\nAnd right at this point, I say that all the decisions I know of declare\nthe contract void unless the defence, on their part, show that she was\nput in full possession of all the facts; and that the defence in this\ncase did not do.\n\nNow, so far as this contract is concerned, on the evidence it is void,\nand void notwithstanding the fact that the trustees paid her five\nhundred dollars; and Mr. Pancoast, according to my recollection, is\nmistaken when he says that she demanded the balance. He offered her the\nbalance, and she stated that she had been informed that she had some\nrights against the estate, and therefore refused to receive it. That is\nthe fact about it. He sent her five hundred dollars, and wanted to send\nher the balance, but she would not have it. Then he asked her to\ntake it, and showed her a receipt to be signed, in which she waived\neverything, and she refused to sign it.\n\nUnder those circumstances I do not think it is possible for your Honor\nto say that she has been estopped.\n\nThe next point raised by Mr. Pancoast is that the oral agreement to\nprovide well for her in the will is void under the statute of frauds.\n\nWell, I am free to say that I do not know how it is in New Jersey, but\nin every other State in which I am acquainted with the law, the statute\nof frauds, to be operative, must always be pleaded. I do not know how\nit is here. That statute has not been pleaded in this case, and I never\nheard of it until the argument to-day. If it is to be pleaded before\nit can be invoked, it is too late to cite it now. But let us go on the\nsupposition that he is right, that the antenuptial contract is void,\nand that the other contract to provide for her in the will is also\nvoid. Then where does that leave us? That leaves us exactly as though no\ncontract had been made. That leaves us without any antenuptial contract,\nwithout any agreement to provide liberally for her in the will. Then\nwhat is our condition? Then the wife is entitled to her dower in the\nreal estate; that follows as a necessity. She loses her interest in\nthe personalty, because that is given away by the will, but if the\nantenuptial contract and parole agreement are both dead—one because\ndisproportionate to the estate and because of the fraud of Russell, and\nthe other on account of the statute of frauds, then she is left with her\ndower in the real estate. It is impossible, it seems to me, to arrive at\nany other conclusion. It certainly would be inequitable to say that she\nhad been estopped on account of what was done with the five thousand\ndollars in the hands of the trustees.\n\nThere is another view of it. There has been, if the contracts are good,\na partial performance; and that of itself would take it out of the\nstatute of frauds.\n\nThen the question is, if it is out of the statute of frauds, and if\nit is out because the contract has been partially performed, the next\nquestion, and, it seems to me, the only question that arises, is, has a\ncourt of equity the right to determine what the words \"You shall be well\nprovided for,\" \"I will provide for you liberally in my will,\" or \"I will\nmake a liberal provision for you in my will\"—what those words mean?\n\nAccording to the idea of counsel on the other side, the Court is bound\nto decide according to the meaning that was in the mind of Mr. Russell.\nBut there comes in here another principle. The only way we can find the\nmeaning in his mind is by finding the words that he used; and we are not\nto import his meanness into the words, if he had meanness; neither would\nwe import his generosity, if he had generosity. We would give to those\nwords their natural meaning, apart from the thought of the one who used\nthem, and apart from the thought of the one who heard them, because the\nwords are known, their meaning is known and can be ascertained by the\nCourt.\n\nNow, the word \"reasonable\" is about as hard a word to define as a court\nwas ever called upon to define, and yet courts of law and courts of\nequity, in hundreds and thousands of instances, have passed upon the\nmeaning of the word \"reasonable,\" and have not only passed upon its\nmeaning, but have given it from time to time definitions.\n\nA man must give reasonable care to the property of another given into\nhis keeping. Well, what is reasonable care? Is it reasonable for him to\ntake such care of it as he does of his own? Not if he is unreasonably\ncareless of his own. And the law takes another step, and says you must\ntake such care of it as is reasonable, as a reasonable man would,\nand the courts then go on to define what a reasonable man under the\ncircumstances would do. Now, there is no word in the language that\ncourts have been called upon to define that is vaguer—where the line\nbetween dawn and dusk, between light and dawn, has to be drawn with\ngreater care or greater intelligence—than that word \"reasonable.\"\nThe word \"appropriate\" has been decided again and again. The word\n\"necessary,\" the word \"convenient,\" the word \"suitable\"—\"suitable\nto his or her condition in life\"—\"suitable to the condition of the\nparty\"—all these words have been given judicial meaning hundreds and\nthousands of times.\n\nAnd now we come to the word \"liberal,\" is that a hard word to define?\n\nEverybody in the world has his notion of what liberal means. Given the\ncircumstances and the actions of the man, and everyone you meet is\nready to decide whether he is liberal or illiberal. A man loses his\npocketbook; five thousand dollars in it; a boy finds it, returns it to\nhim, and he gives the boy five cents. There is not a man in the\nworld, no matter whether he is a judge or not, who would say that was\nliberal—nobody. If there was only a dollar in the pocketbook and he\ngave him half of it, you would say that was liberal. You would have\nto take the circumstances into consideration. You also take into\nconsideration the circumstances of the man who found it. If he is a\npoor man you can not be liberal unless you give him more than you would\ngive the man who did not need it.\n\nWhat is a liberal provision for a wife that has no means of making her\nown living? If the man is able, nothing less than a sufficient sum to\ntake care of her. Suppose Mr. Vanderbilt, who is worth two or three\nhundred millions—I do not know what he is worth, and I do not care, but\nI suppose he is worth a hundred millions—should agree to make a liberal\nprovision for his wife, and make it so that he gets away from the\nstatute of frauds, and thereupon leaves her twenty-five hundred dollars.\nNobody would say that was liberal. Why? Because that word is capable of\na clear and reasonably exact definition. To be liberal, he would have to\nleave her enough to live in the same style that she has been living in\nwith him, and enough to keep her during her life. Anything less than\nthat would be illiberal, mean, contemptible.\n\nSo I might go through all the actions of men in regard to contracts,\npayments, divisions. We all know what liberal means, and it always\nmeans a little more than the law could compel you to do. If a man hires\nanother and says, \"I will give you five dollars a day,\" and the other\nworks twenty days, and he gives him one hundred dollars; nobody says he\nis liberal, and nobody says he is mean. But when the man goes further\nand says, \"You have worked well; I am very much pleased with what\nyou have done; there is fifty dollars (or twenty-five dollars) as a\npresent,\" everybody says, \"Why, that is liberal, that is generous.\" But\nno man ever yet got the reputation of being generous by doing exactly\nwhat he was bound to do. He may have the reputation of being just,\nhonest, of keeping his contracts, of being a good, fair, square man,\nbut he never got the reputation of being generous, and he never got the\nreputation of being liberal, by simply doing what the law compelled\nhim to do, or what his contract compelled him to do, or what he did in\nconsideration of that for which he had received value.\n\nIn this case Russell said, \"I will make a liberal provision for you in\nmy will.\" If he had made no will the law would have given her one-third\nof his personal property. That would not have been liberal. That would\nsimply have been the law. That is the law, and that is what the law has\nsaid is just. Whether the law is right or not, I do not know, but that\nis what the law says. That is just, and no man can be liberal unless he\ngoes just a little beyond justness—just a little.\n\nSo when he says, \"I will provide for you liberally in my will,\" in order\nto comply with that agreement he has got to go somewhat beyond the\nlaw, and the law says one-third; it is impossible for him to be liberal\nwithout going a little beyond one-third, and then he is only liberal to\nthe extent that he does go beyond what the law fixes.\n\nNow, it seems to me that there is no escape from that. Neither does it\nseem to me that there is the slightest difficulty in your Honor fixing\nwhat is liberal—no more difficulty than you would have in saying what\nis right; and we have hundreds of cases where a man has said, \"If\nyou will do so and so I will do what is right,\" and it has been\nenforced—has been enforced thousands and thousands of times. \"I will do\nwhat is right,\" \"I will do what is just,\" \"I will do what is liberal,\"\n\"I will do what is necessary and proper\"—all these words have been\njudicially determined and their meaning fixed by hundreds and thousands\nof decisions. I do not see the slightest trouble in that.\n\nSo, in this case, looking at the parole contract as bad—and it is\nbad—the woman is at the very least entitled to her dower; and the only\nway that she can be robbed of it is by holding that a contract is good\nwhich was made by her without any knowledge of the value of the property\nthat he held. But every decision says that makes the contract void, and\nthat she is not bound to make examination herself; he is bound to give\nher that information. The law says that when two hearts come together in\nthat way, and there is supposed to be affection, they must be candid. He\nmust conceal nothing. His hands must be open; not only must what he says\nbe the truth, but he must tell it all, and she cannot be bound by any\ncontract that she does not make in the full blaze of all the facts. She\nmust have them all, and if he keeps back any, if he makes himself poorer\nthan he is, he destroys the contract. If he tries to take advantage of\nher the law says he only takes advantage of himself. The Court is her\nattorney; the Court appears for her for the preservation of her dower\nright; and the Court will not allow a man to take advantage of any\nmisstatement, of any suppression, of any fraud, no matter whether active\nfraud, or a fraud that rests in non-action. The Court is her attorney\nand says the contract is bad, and if you try to deceive her you deceive\nyourself; and if you fail to put her in possession of all the facts the\nconsideration of the contract fails and it is dead and done.\n\nIf these decisions have any meaning, that is the law, and if there is\na decision on the other side, I should like to hear it. I haven't found\none, not one; and in all the cases where applications have been made\nto set aside an antenuptial contract, I have not found one where the\ndisproportion was as great as it appears in this case. The difference is\nbetween six thousand five hundred dollars and an estate of a quarter\nof a million. I have not found one that had anywhere near that\ndisproportion, and yet case after case is set aside on the disproportion\nof about four hundred dollars or five hundred dollars a year and the\nfortune of eighteen thousand dollars—one where it is thirty thousand\nand she gets about five hundred dollars. I do not know of a solitary\ncase where the deception was as great as in this. I do not say that\nhe intentionally deceived, because I do not know, and, as Mr. Pancoast\nremarked, he is dead. We simply go on the facts that are shown.\n\nNow, as to the value of the property, I do not think there is any real\ndispute about that. Mr. Russell is one of the executors, and when he\nwent over the real estate here on the stand he had in his hand a list of\nall that real estate, with the values put upon it by our two witnesses;\nand he was asked the value, and he looked at the parcel, and he looked\nat the amount, and I tried it here myself, just to see if I could guess\nwhat his answer would be. I deducted in my own mind fifty per cent,\nsometimes, sometimes thirty per cent., sometimes forty per cent., and\nI hit it within five dollars in fifteen cases, just guessing by myself\nwhat he would say, because I knew that he was going by the figures\nwithout the slightest reference, in many cases, to what the property was\nworth. He estimated one parcel at two thousand two hundred dollars;\nI think it was worth about five thousand dollars. He fixed another at\nthree thousand two hundred and fifty dollars; I think it is worth about\nfive thousand dollars. He fixed a third at four hundred dollars; I think\nit is worth about six hundred dollars. When he was asked about those\nsame parcels, without the figures he sometimes went beyond the price\nthat our experts had fixed; sometimes he doubled his own price, and\nsometimes he fell below his price. I think in one or two instances he\neven fell below; but that at the time he had in his mind, any knowledge\napart from the figures that had been made by the experts, I do not\nbelieve.\n\nThe Vice Chancellor: Is it of any significance? If your argument is\nright the disproportion is so great that it makes no difference.\n\nMr. Ingersoll: Perhaps not. Then his co-executor was not called at all.\nSo I take it that we can safely say that the property was worth in all\ntwo hundred thousand dollars, taking it according to their own estimate.\nThe estimate of the man who fixed it on account of the inheritance tax,\nI do not think is of any weight. He did not go over it all and did not\nsee it. I say the disproportion is so great—they having failed to show\nthat the knowledge was in her possession, put there by him—that the\ncontract must be set aside. That we insist upon.\n\nOne of two things has to be done, it seems to me: Both those contracts\nset aside and her dower in the real estate given to her, or both\ncontracts allowed to stand and the court to fix what is a liberal\nprovision in the will—and in that, for one, I see no difficulty.\n\"Liberal\" is a word as easily understood at least as the word\n\"reasonable\"—certainly as the word \"necessary,\" certainly as the word\n\"convenient,\" certainly as the word \"suitable,\" and in fact I might say\nas almost any other word except some scientific term that limits its own\ndefinition.\n\nNow, we have already said that a liberal provision could not be less\nthan the law gives us. In that view of the case, she should have, in\nlieu of her dower, the five thousand dollars, and, on account of\nthe will she should have at least whatever one-third of the personal\nproperty is worth.\n\nIt seems to me that one of those two courses must be pursued. Here is an\nold man who wants to get a woman some twenty-five years younger than\nhe is. Just think how Mr. Pancoast's blood would throb at a woman\ntwenty-five years younger than he. Think what visions would haunt his\nbrain. Think of the Cupids that, with outstretched wings, would follow\nin the darkness of the night as he contemplated his happiness. Here was\na man of that age who wanted this woman, and taking into consideration\nhis ideas of money—a man that considered a thousand dollars a liberal\nprovision; one worth two hundred and thirty thousand dollars or\ntwo hundred and forty thousand dollars, offering her five thousand\ndollars—he wanted her badly. You can hardly think of a more wonderful\nthought visiting his brain than that of giving all that money for a\nwoman nearly twenty-five years younger than himself.\n\nI want to be kind to Mr. Russell; I want to say that he was honestly in\nlove with this woman. I want to be respectful to her by saying that\nthe affection was reciprocated, and that on her part it was absolutely\nhonest. But I do say that Mr. Russell withheld from her the information\nas to his property. Mr. Russell endeavored to drive the best bargain\nhe could, and I say that by keeping back the facts that he was bound to\nmake known to her, he defeated himself—that while he did deceive her,\nhe destroyed his contract.\n\nNow, by no way of reasoning I can think of can you arrive at any\ndifferent conclusion. All matters of this kind, of course, should be\ndealt with from a high standard, the highest standard we have, the very\nhighest. The affection that man has for woman is, in my judgment, the\nholiest and the most beautiful thing in nature; the affection that woman\nhas for man—that affection, that something that we call love—has done\nall there is of value in the world. It has civilized mankind; made all\nthe poems, painted all the pictures, and composed all the music. Take it\nfrom the world and we shall be simply wild beasts—far worse than wild\nbeasts, for they have affection for each other and for their young.\n\nSo I say this should be treated from the highest possible standpoint,\nand treating it in that way your Honor must say that a woman must\nact with a full knowledge of every fact that had any bearing upon the\nquestion to be decided by her; and if she was not put in possession of\nall of these facts, by the man who said he loved her, then the contract\nis void.\n\nOn the other hand, if the contract is held valid, and with it the\nagreement to provide liberally for her in his will, then I say that\nthere can be no liberality that does not go beyond the law. In the\none case she is entitled to five thousand dollars and one-third of the\npersonalty, and in the other case she is entitled to her dower.\n"
}