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.