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,
E. W. KNIGHT.
Now, gentlemen, they were informed of the existence of that will and of its destruction, and were so informed before John A. Davis filed this will. And when we pleaded this will, John A. Davis pleaded that it had been republished, and yet no evidence was given in of any republication. They knew that under the statute of Montana, when a man makes will number one, and afterwards makes will number two, and afterwards destroys will number two, that will number one is not revived; that the making of the second will kills the first, and the destruction of the second kills that, and leaves the man intestate and without any will. Now, there is the letter of Mr. Knight—full, free, frank, candid, honorable, like the man himself. He says there that he does not remember all the provisions, but he does remember that he provided for some nephews and nieces, and provided for Andrew J. Davis, Jr., twenty-five thousand dollars, for one Jefferson twenty thousand, for the girl about the same, and that he provided also for the executors of the will, and appointed Knight, Hauser, and Dixon as his executors. That is exactly what he says here.