Argument Before the Vice-Chancellor in the Russell Case
Russell vs. Russell, Camden, N.J., June 21, 1899.

by Robert G. Ingersoll
(1899)

From The Works of Robert G. Ingersoll (Dresden Edition, 1900–1902), Volume 10.
Source: https://thegreatagnostic.com/works/russell-case/
Public domain. CC0 / Public Domain Mark 1.0.

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• 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.

So, in this case, looking at the parole contract as bad—and it is
bad—the woman is at the very least entitled to her dower; and the only
way that she can be robbed of it is by holding that a contract is good
which was made by her without any knowledge of the value of the property
that he held. But every decision says that makes the contract void, and
that she is not bound to make examination herself; he is bound to give
her that information. The law says that when two hearts come together in
that way, and there is supposed to be affection, they must be candid. He
must conceal nothing. His hands must be open; not only must what he says
be the truth, but he must tell it all, and she cannot be bound by any
contract that she does not make in the full blaze of all the facts. She
must have them all, and if he keeps back any, if he makes himself poorer
than he is, he destroys the contract. If he tries to take advantage of
her the law says he only takes advantage of himself. The Court is her
attorney; the Court appears for her for the preservation of her dower
right; and the Court will not allow a man to take advantage of any
misstatement, of any suppression, of any fraud, no matter whether active
fraud, or a fraud that rests in non-action. The Court is her attorney
and says the contract is bad, and if you try to deceive her you deceive
yourself; and if you fail to put her in possession of all the facts the
consideration of the contract fails and it is dead and done.

If these decisions have any meaning, that is the law, and if there is
a decision on the other side, I should like to hear it. I haven't found
one, not one; and in all the cases where applications have been made
to set aside an antenuptial contract, I have not found one where the
disproportion was as great as it appears in this case. The difference is
between six thousand five hundred dollars and an estate of a quarter
of a million. I have not found one that had anywhere near that
disproportion, and yet case after case is set aside on the disproportion
of about four hundred dollars or five hundred dollars a year and the
fortune of eighteen thousand dollars—one where it is thirty thousand
and she gets about five hundred dollars. I do not know of a solitary
case where the deception was as great as in this. I do not say that
he intentionally deceived, because I do not know, and, as Mr. Pancoast
remarked, he is dead. We simply go on the facts that are shown.

Now, as to the value of the property, I do not think there is any real
dispute about that. Mr. Russell is one of the executors, and when he
went over the real estate here on the stand he had in his hand a list of
all that real estate, with the values put upon it by our two witnesses;
and he was asked the value, and he looked at the parcel, and he looked
at the amount, and I tried it here myself, just to see if I could guess
what his answer would be. I deducted in my own mind fifty per cent,
sometimes, sometimes thirty per cent., sometimes forty per cent., and
I hit it within five dollars in fifteen cases, just guessing by myself
what he would say, because I knew that he was going by the figures
without the slightest reference, in many cases, to what the property was
worth. He estimated one parcel at two thousand two hundred dollars;
I think it was worth about five thousand dollars. He fixed another at
three thousand two hundred and fifty dollars; I think it is worth about
five thousand dollars. He fixed a third at four hundred dollars; I think
it is worth about six hundred dollars. When he was asked about those
same parcels, without the figures he sometimes went beyond the price
that our experts had fixed; sometimes he doubled his own price, and
sometimes he fell below his price. I think in one or two instances he
even fell below; but that at the time he had in his mind, any knowledge
apart from the figures that had been made by the experts, I do not
believe.

The Vice Chancellor: Is it of any significance? If your argument is
right the disproportion is so great that it makes no difference.

Mr. Ingersoll: Perhaps not. Then his co-executor was not called at all.
So I take it that we can safely say that the property was worth in all
two hundred thousand dollars, taking it according to their own estimate.
The estimate of the man who fixed it on account of the inheritance tax,
I do not think is of any weight. He did not go over it all and did not
see it. I say the disproportion is so great—they having failed to show
that the knowledge was in her possession, put there by him—that the
contract must be set aside. That we insist upon.

One of two things has to be done, it seems to me: Both those contracts
set aside and her dower in the real estate given to her, or both
contracts allowed to stand and the court to fix what is a liberal
provision in the will—and in that, for one, I see no difficulty.
"Liberal" is a word as easily understood at least as the word
"reasonable"—certainly as the word "necessary," certainly as the word
"convenient," certainly as the word "suitable," and in fact I might say
as almost any other word except some scientific term that limits its own
definition.

Now, we have already said that a liberal provision could not be less
than the law gives us. In that view of the case, she should have, in
lieu of her dower, the five thousand dollars, and, on account of
the will she should have at least whatever one-third of the personal
property is worth.

It seems to me that one of those two courses must be pursued. Here is an
old man who wants to get a woman some twenty-five years younger than
he is. Just think how Mr. Pancoast's blood would throb at a woman
twenty-five years younger than he. Think what visions would haunt his
brain. Think of the Cupids that, with outstretched wings, would follow
in the darkness of the night as he contemplated his happiness. Here was
a man of that age who wanted this woman, and taking into consideration
his ideas of money—a man that considered a thousand dollars a liberal
provision; one worth two hundred and thirty thousand dollars or
two hundred and forty thousand dollars, offering her five thousand
dollars—he wanted her badly. You can hardly think of a more wonderful
thought visiting his brain than that of giving all that money for a
woman nearly twenty-five years younger than himself.

I want to be kind to Mr. Russell; I want to say that he was honestly in
love with this woman. I want to be respectful to her by saying that
the affection was reciprocated, and that on her part it was absolutely
honest. But I do say that Mr. Russell withheld from her the information
as to his property. Mr. Russell endeavored to drive the best bargain
he could, and I say that by keeping back the facts that he was bound to
make known to her, he defeated himself—that while he did deceive her,
he destroyed his contract.

Now, by no way of reasoning I can think of can you arrive at any
different conclusion. All matters of this kind, of course, should be
dealt with from a high standard, the highest standard we have, the very
highest. The affection that man has for woman is, in my judgment, the
holiest and the most beautiful thing in nature; the affection that woman
has for man—that affection, that something that we call love—has done
all there is of value in the world. It has civilized mankind; made all
the poems, painted all the pictures, and composed all the music. Take it
from the world and we shall be simply wild beasts—far worse than wild
beasts, for they have affection for each other and for their young.

So I say this should be treated from the highest possible standpoint,
and treating it in that way your Honor must say that a woman must
act with a full knowledge of every fact that had any bearing upon the
question to be decided by her; and if she was not put in possession of
all of these facts, by the man who said he loved her, then the contract
is void.

On the other hand, if the contract is held valid, and with it the
agreement to provide liberally for her in his will, then I say that
there can be no liberality that does not go beyond the law. In the
one case she is entitled to five thousand dollars and one-third of the
personalty, and in the other case she is entitled to her dower.
