The Works of Robert G. Ingersoll, Vol. 10 (of 12) / Dresden Edition—Legal

by Robert Green Ingersoll

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.