THE
PIERCE'WILL CASE.
-OFHON. CHAS. S. MAY,
FOR THfE CONJE'!AtNYiT5
KALAMAZOO CIRCUIT COURT,
February Term, 1876.
KALAMAZOO:
PUBLISHED BY GAZETTE PUBLISHING COMPANY.
1876.








STATE OF MICHIGAN:
KALAMAZOO
CIRCUIT COURT,
FE(73CUJ4UiY T~ZETPJ; 1S76.
JOSIAH L. HAWES, CIRCUIT JUDGE.
EMEa'ItNE E. PIERCE, JENNINGS HADLEY,    )
FRIANCIS PIE(1CE, JOSEPHINE PIERCE,
AN.NIS E. PIEJRCE AND EMIELINE E.
PIElRCE, as Executrix of the last will
and testament of Isaac Pierce deceased,
Proponents,
vs. 
LOpEN PIERICE, POLLY CLARK, LUCINDA
MILLIrMAN, AND JENNETTE PARISH, 1IY  |
HORxACEI H. PIE:RCE, her guardian,
Contestaclts. I
COTJIISIEE:
A. B. MAYNARD, ]
H. F. SEVERENS,
ARTHUR BROWN,    S For Proponents.
DALLAS BOUDEMAN, I
CHAS. K. TURNER.   J
CHAS. S. MAY,   )
T. R. SHERWTOOD, I
GEO. M. BUCK,        For Contestants.
J. M. EDWARDS,
0. W. POWVERS. J
ARGUMENT OF HON. CHASI Si MAY FOR THE CONTESTANTS,
KALAM AZOO:
KALABIAZOO GAZETTE PUBLISIIING COMIPANY.
1876.




From Tlhe Chicago Times.-The argqument of Hon. Clhas. S. May, for Contestants, occupying
four hours in itsdelivery, is conceded on every hand to be the ablest ever made to a jury in
this county; clearly and logically discussing the facts in the case, eloquently depicting the
wrongs of Pierce to his first wife and children, ayid leaving an impiession upon the jury which
could not be shaken off.
From  Thle Detroit Erezing News. —The Proponents' case was opened by Arthur Brown, Esq.,
who spoke for two hours and a half and used his utmost endeavors to convince the jury that
the will presented was the last will and testament of Isaac Pierce. He was followed in the
afternoon by Geo. M. Buck, for the contestants, who spoke for one hour, and prefaced, in strong,
clear words, the main argument for the Contestants, which was to be made by Hon. Chas. S.
May. lion. A. B. Maynard, of Detroit, was, to reply to Mr. May, and the anxiety in town was
intense to hear the efforts of these legal luminaries.
Mr. May opened at half-past three in the afternoon, but long before he began every foot of
space in the court room was filled with an eager and excited crowd, who breathlessly listened
to every sentence of his argument. He appealed to the reason of the jury and built from the
facts a barrier which the most vehement endeavors of Mr. Maynard failed to break through.
He spoke for four hours, his argument continuing into the evening. His speech was spoken of in
the highest terms, many pronouncing it the finest jury effort ever made at the Kalamazoo bar'
Mr. Maynard opened at half-past eight on Tuesday morning and spoke until noon. He appreciated the importance of the case and the eloquent argument which he had to reply to, and did
his utmost to break its force and effect. He presented the Proponents' case in a strong light,
but it was plain to be seen that the jury were inclined to favor the contestants.
From  The Kalamazoo Gazette.-When Mr. Buck closed a dense crowd had filled the court
room, all anxious to hear Hon. Chas. S. May, who was to make the main argument for the contestants, and who, it was expected, would be more brilliant and eloquent than ever before in a
jury case.
It was a scene long to be remembered in the history of the court. In the audience were
large-numbers of ladies, and when Mr. May rose at the close of the short intermission, a silence
prevaded the room which was the forerunner of the wrapt attention which he received during
the four hours which he spoke.
He was pale, anxious and earnest. Each listener leaned forward to catch his opening sentences. He began slowly and calnly. But soon rousing with his subject he gathered the facts
into logical order and clothing them in eloquent words wove them into a powerful and irresistable argument.
At 5:30 P. am. the court adjourned until evening, when the crowd was more dense and excited
than before. Mr. May continued his argument. The afternoon he had devoted to reasoning
and convincing. In the evening he fairly blazed with excitement and eloquence. When he
closed the crowd so forgot they were in a court of justice as to attempt to cheer, and the impression was general that the Contestants would be successful. We believe it to be the greatest jury effort of Mr. May's life and one of the finest ever made in the State.




ARGUMENT.
GENTLEMEN OF THE JURY:
I cannot tell you how deeply I feel the responsibility which now
devolves upon me. As I approach the argument of this important
cause and think of the interests confided to me, and how much
may possibly depend upon what I may say to you, I am almost
overwhelmed with the sense of responsibility. The stake which
these contestants have in this issue is a deep and vital one, and
as I stand here now to speak for them, my mind goes back over
this testimony to those days long ago when in summer heat and
winter cold they toiled in that early pioneer home, in the midst
of privations and discouragements, to lay the foundation of this
ample fortune which is now in contest.
Gentlemen, there has never been in the whole history of this
court so important a civil cause tried before a jury of this county.
This is true whether we consider the amount at issue, or the
intrinsic character of the facts.'For this is not only a case invoIving nearly a hundred thousand dollars in money, but it is one,
also, of deep and even tragic interest. It is, indeed, a powerful
drama from real life. Put upon any stage these facts would draw
tears from human eyes and stir all human hearts to indignation.
Told anywhere under the circuit of the sun to civilized men, they
would touch the tenderest chords of human sympathy, and even
savage breasts would be moved by them.
Gentlemen, you have a high duty to perform. Not often does
such a duty devolve upon a jury. You may all live long lives-as




6                        AR1GUMENT.
God grant you may —and be honored and trusted by your fellow
citizens, as some of you already have been, but you will never
meet a greater responsibility than this. It is mly duty now to
speak for these contestants; it is yours to listen and weigh what
I may say.  I have often thought that this great feature in the
administration of justice was not rightly understood by juries
and the public. It has seemed to me, sometimes, that juries and
the people at large have regarded the arguments of counsel as
an infliction which the law rather permitted than sanctioned, and
have therefore turned deaf' ears to the bar. But this is not right.
My standing before you is no idle, useless ceremony; it is one of
the solemn institutions of the law, and as I speak upon my responsibility as an advocate, it is as much your duty to listen to me and
to the argument which I shall make, as it is that you should listen
to the charge of his honor, when he shall come to deliver it. You
have been patient, attentive listeners to all this testimony and
all these proceedings for nearly three weeks, and I know that I
shall have your candid, patient, careful hearing.
I have invoked such a hearing front you, gentlemen, for I
wish to appeal to-day to your reasons, to your judgments to your
understandings. I wish to make an argument to you-an argument founded upon the facts, upon the law, upon logic. I wish
to indulge in no tricks of speech. The warning of the counsel
was entirely unnecessary. I shall not be betrayed into leaving
the solid ground of my argument to gather any useless flowers of
rhetoric, or to indulge in any unwarranted appeals to your sylmpathy. But it will not be the misfortune of my clients in this
cause, if I shall build a highway of reason and logic, over which
the sympathies which I know fill all your hearts lmay be carried
to a verdict for these contestants. Happy is that cause where no
violence needs be done to the better feelings of our nature, but
where the lines of sympathy run parallel with those of reason
and of duty.
THE MAIN QUESTION.
Gentlemen, the main question which we have here to try and
decide —-the question which involves all the others, is this: Is
this paper which has been offered in evidence by the proponents




ARGU-MNENT.                        7
the last w:ill anl testament of Isaac Pierce?  In other words, is
this a valid will?
Now, there are two broad grounds on which we attack the
validity of this will. Though Isaac Pierce signed this paper with
his own hand, though it has all legal and due formality, we say it
is not his will in the law if at the time of its pretended execution he was either not in his right mind, or was under the undite
ifiluen-ce of another.  These grounds are entirely independent of
each other-either is sufficient to set aside the will, and on the
question of mental capacity the Court will instruct you that the
burden of proof is upon the proponents who offer this will.
I propose to argue these questions in their order; but before we
go further let us stop a moment to see what is the nature and
character of this solemn, legal instrument' whose validity is the
subject of our chief inquiry.
WHAT IS A WILL?
Now, gentlemen, at common law, since the reign of Henry
VIII., a man may make his will, and direct in his lifetime what shall
be done with his property after he is dead. Before that time —
now more than three hundred years ago —the rule in reference to
wills was, that a man might by will dispose of one-third only of
his personal property; the rest going by law to his wife and children.  But since the time of which I speak, the law has been
that a man could dispose of all his property, both real and personal, abitrarily by his will; that is, give direction as to what was
to be done with it after his death.
Without a will, in this country, it would descend equally to his
children, if such he had, the wife having her life estate, called
dower, in the real property or lands. It would'seem, therefore,
that the law of inheritance is older than the right to make a will.
For back of the old rule giving the right to dispose by testament
of one-third of the personal property, was the still older principle
of descent of property to the children or kindred of the deceased.
Thus, you will perceive, gentlemen, that this right to make a
will by which property can be turned away from  the natural
channel of inheritance, is a high prerogative, and it is for this
reason that it is surrounded by the law with solemn safeguards




8                       APRGUMIENT.
and restraints. No insane man, no drunken man, no man with
disordered faculties, or reason clouded by drink, is permitted to
exercise this great right. And so the law has said that a man
shall have certain qualifications before he shall be permitted to
make a will.
In addition to all the precautions and safeguards which are
thrown around the mere execution of the instrument, he must be:
1st-Of souznd mindctc andt memnory, and,
2nd-He must be free from u)Cdue i2ijfluence.
In other words, he must have mind enough to make a will, and
he must be left free and untrammeled in makingy it.
THE QUESTION OF MENTAL CAPACITY.
Now, gentlemen, I propose to argue these questions in their
order, and I shall begin by looking at this question of mental
capacity. Under the testimony in this case I shall divide the
question into two parts, and I shall try to show you that Isaac
Pierce on the 29th day of July, 1871, when this pretended will
was made, was destitute of the requisite mental capacity,
Ist-By reason of generacl mnelnatl nJsozundcmless, and
2nd-Because he was inztoiccated.
Here also the propositions are independent of each other. If
he was of unsound mind on that day he could not make a will, no
matter how sober and free from drink he might have been, and
if he was intoxicated or drunk when the paper was signed, then
that fact would be fatal, no matter if he was generally sane and
sound at that period, when not under the influence of drink.
Now, on the first branch of this discussion, the law says that a
man to make a will must be "of sound mind and memory."
What does that mean?  Let us have a clear understanding of
this at the outset.
The question, gentlemen, of what constitutes a sound mind is a
very broad one and embraces a good deal.
In the first place, for the purposes of such an issue as we are
trying here, it embraces not only the intellectual but the moral
faculties, for these too are involved in the act of making a will.
When we inquire in such an issue as this for mental soundness
we have a much broader field to go over than the mere matter of




ARGUMENT.                         9
technical, intellectual memory, or judgment, even. It is not a
mere question of idiocy, lunacy, or imbecility. I might read to
you from high authority in support of this ground. The most
eminent writers in medical jurisprudence have taken it and enforced it, both on principle and by illustration.
WHAT CONSTITUTES A SOUND MIND?
Gentlemen, on this question, we are to look not alone to the
memory and the judgment, to the mere intellectual faculties, but
to the moral faculties as well-to the reason, not as a separate
faculty, performing a separate and isolated function or office, but
is governed, controlled and influenced in its action by the moral
affections-by justice, by charity and benevolence, by the love of
kindred, by parental affection and regard.
Not that a man must have all these moral faculties in their
highest exhibition: but he must be in the possession of such
measure of these as have fallen to his particular mental and moral
organization. This is, I think, what the law contemplates. This
father when he signed that paper called his will, needed not only
the memory to recall to his mind the names of his children, but
he needed to have also the sentiment of filial affection towards
those children; the sentiment of gratitude for their kindness and
service to him, and the sentiment of justice which should lead
himn to rememnber these things when he came to give directions
for the final disposition of his ample property.
In other words, gentlemen, the law demands that there be a
whole man to make a will; that is what it means by a sound
mind; but not necessarily a strong man, not necessarily a well
man in body, but a whole man and a clear man, however weak
and diseased in body.
I know the law says-and these gentlemen on the other side
will not forget this-that it requires less mind to make a will than
to make a contract, and this is in tender consideration of the circumnstances which so frequently surround the making of wills by
inen on sick beds and death b-eds. But this I submit does not
touch or impair in the least the point which I make, that it
must be a whole iman, with the moral and intellectual faculties,
however inuch they mlay be depressed by sickness or old




10                      ARGUMIENT.
age, still in due proportions to each other, as they existed in
the man in  strength and health, and not thrown out of
proportion and harmony with each other. I grant there may be
disease of certain kinds, if these bear upon the man alike,
and simply reduce him in strength, leaving him still the required
degree of testamentary. capacity; but there must not be a disordler
of the mind, a clerangement of the faculties. I think you catch
my idea, and understand the distinction which I make.
Gentlemen, we touch a great question here. The human mind
is a delicate and profound piece of mechanism. Our human skill
and invention are weak and puny when compared with those of
the divine architect who fashioned the soul of man. How little
do we understand all the cogs and wheels and secret springs of
this delicate and yet most powerful machine!  We look into each
others faces, and we pronounce some men sane and some insane,
and yet how little can we tell from the surface of what is going on
within. Why gentlemen, there have been men called mono-maniacs,
men insane upon a single point, who, on every other thing in the
world but one, have been as a clear and rational as any of us;
men even of superior ability and endowments, but who from
some cause, from overwork or over grief, from intemperance, from
sickness or some sudden disaster, have become sprung from the
rational center, so to speak, and have stepped out of the ranks
of sane and rational men and become inmates of our retreats and
asylums.
We might be hours and even days in the company of such men,
without discovering where the outside blow or pressure had
broken through or impaired the delicate machinery. Shakespeare,
the great poet, has given us a touching and powerful picture
of mental derangement, not only in his Lear and his Hamlet, but
in the sad sweet girl, Ophelia, whose mind under the pressure of
a great grief became"Like sweet bells jangled out of tune.-"
ISiAAC PIERCE OF UNSOUNi)D }IND, JULY *29th, 1871.
I dome n1ow, gentlemen, to the proposition that Isaac Pierde was
of unsound mind and memory on the 29th day of July, 1871, the
day when this paper was signed.




ARGUMENT.                       11
Remember, I do not mean by this that he was then necessarily
either an idiot, a lunatic or an imbecile. Nor is it necessary to
show that he was stark mad, so that everybody could see his condition. He might have been mentally unsound, and yet have
been in none of these conditions. It is enough for my purpose if
his faculties were so far impaired or shattered, from any cause, as
to disturb their harmony and balance.
Gentlemen, let us now look at Isaac Pierce as, under the light
of this testimony, we find him in that summer of 1871. Though
you may never have seen the living mln, as I have, yet, aided by
this evidence, all centering around him and throwing its light upon
him, you need have no difficulty in seeing what manner of
man he was and the kind of life he led. His image stands out
with wonderful distinctness upon the background of these factsand is relieved in bold outlines by this testimony of the witnesses
who knew him so well. He was by nature, a roughi, strong man,
with iron frame and shaggy brows, with untamed passions and a
will which dominated over men and circumstances. He resembled
a type of men most often found in a state of semi-civilization,
and if he had lived in the middle ages he would have followed
his prince, a bold, rough trooper to the wars.
I shall show you now, gentlemen, some of the different causes
which contributed to undermine this iron constitution and pull
down this naturally strong man, so that in 1871, at the age of 68,
we find him as one of the witnesses described him, "the Inere
wreck of his former self;" weakened and broken in body and
mind. It was a great ruin, and the testimony to which I shall
appeal will show how it was wrought. Let me classify and point
out these contributing causes of mental unsoundness in their
order, and dwell a little upon the natural effect of each.
First. —Log~/ Contitnuedl Intermpercnce-On this head there is
no dispute. All the witnesses on this subject agree, and their
testimony presents to us the picture of a man addicted to the
life-long habit of drink. At the earliest glimpse we have of
Isaac Pierce in the testimony, as far back as 1834, he was addicted
to the habit and kept liquor by the quantity in his house. Horace




1 2                     ARGUMENT.
Pierce, his son, now 45 years of age, says he drank as long ago
as he can remember.
Here, then, gentlemen, as we go back forty years in this man's
history-a period longer than a generation-rwe find him started on
that broad and fatal highway which leads onlyto ruin and to death.
And the testimony, on their side as well as ours, agrees further,
that this habit of drink, so long ago formed, was never changed
or abandoned, but grew gradually and steadily upon hilm,
gaining in power and dominion over him as he became less able
to bear up under the pressure of diseases, accidents and old ageas his strength and vigor failed him and his natural force abated.
"It grew upon him," is the language of many witnesses, and the
fact testified to by all of them. So, gentlemen, I do not exaggerate
when I say that in the month of July, 1871, when this will was
made, Isaac Pierce was a confirmed and hopeless drunkard, firequently, almost daily, intoxicated, as the testimony shows, with
nerves shattered and unstrung, with mind and body alike enfeebled,
with reason, and memory disordered and clouded. He lived, it is
true, in a fine house, and was the lord of broad acres, but had he
been an outcast in the streets with the same habits, he would
have been what is called a "gutter drunkard." Now, need I add
anything to this picture of the physical, moral and mental ruin of
this strong man? There can be no question about the facts; they
are proved over and over again, by dozens of witnesses, who
knew this man well and observed his daily conduct and life.
What then is the conclusion from these facts as bearing upon
this question?
It is this, gentlemen, beyond doubt: This long continued intemperance and habit of intoxication must have affected the mind
of Isaac Pierce.  Need I demonstrate such a proposition as this?
Is not this a natural, a legitimate, yea, an inevitable effect?  Is it
not proved by science, by philosophy, and by all human experience
and observation?
Who dares to say that such long continued excess and violation
of the laws-of nature-forty years of drunkenness-would not leave
its terrible results behind!




AIGUMENT.                        13
Ah, gentlemen, N ature is inexorable, and for her violated laws the
utmost penalty must be paid. They cannot in anyway be evaded or
escaped. God is just and merciful, and he will always forgive, but
the laws which he has ordained for the government of his physical
universe he will never abrogate. Neither sighs of regret, nor
tears of repentance, nor pangs of remorse will ever do away with
these. What we call the laws of physical nature are as fixed and
unchangeable as God himself, and their penalty will surely fall
upon him who violates them.
Isaac Pierce is proved to have violated the physical and the
imoral law alike, daily, for a lifetime, and is it any wonder that he
reaped the terrible penalty!  How could he have escaped it?
And where, and howr, in such a case as his, is the penalty of
violated law visited? Directly, as all medical science will tell you,
upon the mind, upon the memory, upon the reasoning faculties,
and also with equal power upon the moral affections. All these,
as I have shown you, are needed to make a will. The tendency,
the direct tendency of drunkenness and intoxication is to shatter
and destroy the intellect and to blunt and imbrute the moral
affections. This is so, or all human observation is a deception and
a lie. I could read to you for hours from men of science and
experience, who have made this subject the study of a lifetime, to
show this. We shall have occasion to see pretty soon that this
was the effect of strong drink upon Isaac Pierce.
I shall argue then, gentlemen, from this fact of the man's proved
habits and condition in this respect alone, that the overwhelming
probability is that he could not have had the requisite mental
soundness to make a will in the summer of 1871.
I shall contend to you that the presumption always is that a
confirmed, besotted drunkard, of long standing, is never properly
qualified to dispose of large possessions among many different
objects of his bounty, having different and conflicting claims upon
him, such as for instance, the children of this man had; and I put
the proposition, in a word, upon this strong ground, that there
must of necessity be in the case of such an inebriate, such a moral
waste and overthrow, such an impairment and destruction of the




14                       ARGUMENT.
mind, and especially such a degradation, blunting and imbruting
of the moral affections that it is no longer the man that wills and
speaks, but the wretched wreck and caricature of that sentient,
accountable human being which the law demands.
I know, gentlemen, that this may be denounced as broad
ground, and novel ground to take, but I believe you will agree
with me that if this man has cut off a part of his children from
his bounty who had the strongest claims upon him because his
natural love and affection for them was lost and swallowed up in
strong drink, and all the better and kindlier feelings of his nature
were burned and seared away by this all devastating and blasting
habit of intoxication, that then you will say with Ine that this
cannot be held to be his free and intelligent and deliberate act
and expression toward them. There must have been a man of
some sort behind this will; a man with siuch faculties of heart
and soul as God originally endowed him with.
Secondl —Paralysis  in, 1867.-But, gentlemen, there were still
other causes which contributed to this unsoundness besides this
great one of intemperance.
The testimony shows that in 1867 Isaac Pierce had a stroke of
apoplexy, or as many of the witnesses called it, a shock of palsy.
He was prostrated by this attack for a time and his right side was
paralyzed.
Now this is a most powerful piece of testimony as bearing
upon this question. Apoplexy, gentlemen, is a disease of the
brain, or rather it is a disease which takes effect directly upon the
brain. It is a flooding and drowning of the brain by the blood
in the circulation breaking through the membrane, or covering
which serves as its protection. This of course, according to the
extent of the injury would paralyze the brain and destroy its
action. If one side of the brain is affected then all action is gone on
that side, and the benumbed arm and hand hang useless and cold,
as the testimony shows this man's did after the shock. It follows
too, that if one side is attacked in this way, then the man is
mentally half destroyed, for this disease is a destruction of the
mind. When the paralysis is of both sides or total, as it is called,




ARGUAIENT.                       1a
then the man falls dead on the spot, his mind and consciousness
snuffed out like a candle.
There is no question, gentlemnen, that this is the philosophy of
this disease, and a man who has had a stroke of apoplexy never
fully recovers from the blow.  Another stroke will follow soon,
and if that does not complete the fatal work the third one surely
will. This is not only a matter of science, but it is one also of
common observation.  When this terrible disease strikes its
victim  down it is a sure call from death himself.  It is the grim
messenger knocking at his door and saying "I want you, and I
will come again." Fromn that time the man is doomed and blasted
and under sentence. He is, he can be, no longer himself.
Why, gentlemen, there is no doubt at all about this matter. I
could show you abundantly from the highest authority that this and
more than this is the effect and meaning of this fatal and terrible
disease. One eminent writer on the subject says "Apoplexy is
usually followed by permanent impairment of the mind-mental
weakness is shown by emotional manifestations-disposition
frequently changes.  T[he Imind is more easily infltencecl by
ot]hers."
Another great author says-"The mental faculties usually suffer
irreparable damage. There is no longer the same power of attention and capacity for business or clearness and comprehension of
thought. Two ways in which patient is especially affected, viz:
by defection of memory and by peculiar tendency to emotionparticularly grief, shedding tears."
"Defection of memory."-Recall the testimony of Dr. Lovell,
Enos T. Lovell, O. N. Giddings and Henry E. Hoyt, showing that
when Pierce was on the board of supervisors in 1868-the very
next year after his attack-he forgot to put into his tax-roll nearly
a thousand acres of land including some of his own!
"Tendency to emotion-to tears"-Recall the frequent instances
in his last years, as described by many witnesses when he gave
way to tears-as in that touching picture which Dr. Mason gives
us of him, sitting on the banks of that little lake on his farm and
weeping to a stranger over his troubles.




1 6                      ARIGU3IENT.
Gentlemen, these are most significant facts when taken in connection with the natural results. of this disease, as thus given by
these eminent writers.  And you will remember, too, that Dr.
Seely, a witness for the proponents, admitted this character of the
disease, that it was an injury to the brain, and that its results
were permanent.  Am  I not justified then in claimning that after
this attack in 1867 Isaac Pierce was never himself again, was
never mentally sound as before, but had suffered, inevitably suffered
permanent mental impairment?  So let us put this with the great
strain of long continued intoxication and drunkenness, and then
look further to see what else was added even to these.
T/dircl-Accien, ts, Sicknzess and -l ljuries.-Here, gentlemen,
is a class of causes which would naturally contribute largely to
the physical and mental overthrow of this man. The mind as we
all know is dependent upon the body for its vigor and strength.
There can never be a really sound mind in an unsound body.
I mean by this that the mind cannot have its fullest exercise and
strength, can never be what it otherwise would be if the physical
basis is weakened and enfeebled. Now the testimony shows beyond question that the physical man Isaac Pierce was subjected
in his life time, and especially in his later years, to a series of
sicknesses, accidents and injuries that well might of themselves
have sapped and shattered the strength of a strong man. As
proved by the attending physicians in either case, he had two
protracted and severe illnesses wherein his life was despaired of.
He was thrown fromn his buggy and so severely injured about his back
and shoulders that he was confined to his house for weeks. He was
trampled upon and terribly injured by fierce stallions in his stable,
and taken up unconscious and nearly dead, suffering a long time
after. And here, in Kalamazoo, near the Michigan Central Railroad depot, he was caught upon the cow-catcher of a train under
rapid motion and thrown twenty feet into the air, striking violently
upon the ground and receiving terrible injuries to his head
and back, besides the fearful shock of the concussion.  His
children, some of these contestants, came here as they testified,
to see him, and when he could be moved they carried  him
carefully to his home at Climax, where he was confined to his bed




ARGUMENT.                       17
for weeks.  Thiswas a terrible shock to a man of his age, and the
wonder is that he ever survived it.
Now, gentlemen, here is a dreadful succession of physical ills
and misfortunes to this man, and can it be supposed for a moment that they did not leave their lasting effects upon mind and
body alike? Why we find Pierce himself, ever after, while he
lived, complaining of these effects. He told Levi Taylor and
others, that the shock of palsy, as he called it, had hurt him; he
complained of his benumbed cold hand and arm, even in the
summer heat of harvest time; he said he found himself lying by
the stacks in the field, after a period of unconsciousness, he knew
not how long; he complained to William W. Peck, to Hobart and
others, that he could not do business as he once could. But it did
not need this sorrowful self-consciousness of mental decline, as
we shall see by and by, to show us that the man was no longer
himself.
Fourth- Old Age. —Now, gentlemen, I ask you to add to all
these causes of mental unsoundness and as the crowning fact
of all, the natural and yet most powerful consideration of
old age with its rapidly increasing weakness and its thickly  gathering  clouds  and  shadows.  And  old  age  after
such  a  life!  Is  it  any  wonder that all these things
brought Isaac Pierce to the condition described by so many witnesses?  "He failed very fast" said Dr. Lovell and Dr. Babcock.
And all the witnesses say this in their own language. The testimony on this point is indeed overwhelming and uncontradicted.
The last days of this man were his worst days, as according to the
moral law they must have been, and he went down, down with an
ever increasing momentum of evil.
THE EFFECT OF ALL THESE-EVIDENCES OF MENTAL ABERRATION.
But what was the effect of of all this upon his mind, upon his mental
soundness-that is the question before us? In the first place I have
a right to argue as I have argued to you, that the effect of all
these causes must have been in the very nature of the case, in the
very nature of the mental constitution, of man to weaken, destroy
and derange his mind and disorder his faculties. But happily I
am not left here to mere general reasoning. The testimony shows




18                     ARGUMENT.
that in 1871 when this pretended will was made there were plain
indications of mental aberration in Isaac Pierce.
Let me group these from the unquestioned testimony of many
witnesses. Remember that this paper bears date the 29th of July.
It was the harvest month, and when under the llidsunlmmer heat
and natural work and worry and excitement of the time, all the
concealed and latent tendencies to mental derrangement would
naturally be developed. And so, gentlemen, we find this man
according to all the testimony drinking heavily during this month
of July. We find him driving his reaper at a furious gait about
his harvest field, endangering the lives of man and beast alike.
We find him coining home firom Battle Creek in the early forenoon and turning his horses, harnessed, into the field loose without
drink or feed, to stand all day in the hot sun-and there is no
evidence that he was naturally cruel to his beasts. We find him
taking his men from the pressing harvest work and sending them
to work which did not need to be done. We find him ordering a
fence to be built in his barnyard and close beside another. We
find him squinting across the fence and asking his hired man
whether there was one row of stakes or two. We find him sending men to cultivate another man's corn field. We find him giving orders to men and then immediately forgetting them. And
then finally, and worse than all the rest, we finding him failing
even to recognize his only grand-child to whom he had been fondly
and strongly attached! And besides all this he was constantly
complaining of his feelings and condition, saying that his head
felt bad, that he was cold and numb, that he could not remember,
that he felt dizzy and flighty, that his mind was affected, that there
was a blur over his eyes, and that he saw double; that his paralytic
stroke had affected him and that his meinory had failed him.
Here, gentlemen, is a great array of facts going to show this man's
mental unsoundness in that summer of 1871. But these are not
all. Why, gentlemen, the very expressions of the man about this
will which the proponents themselves have put in into the case,
contradictory and unwarranted as they are, show a shattered and
disordered intellect. If there is any business in the world which
men ordinarily hold sacred and keep to themselves it is the making




ARGUMIENT.                      19
of their wills.  Men ordinarily consider this a solemn business,
associated as it is with the thought of death; they have the paper
quietly drawn up and then they file it carefully and securely away,
frequently not even telling the members of their own families, or
the very beneficiaries under it, what they have done. But this
man who was by nature a grave, severe man, is shown to have
gone all about the country, among not only his friends and acquaintances but among entire strangers, talking openly, loudly.
and blasphemously about this will-telling one man he had made
it to please himself, and that all "hell could not break it" —and
another that it did not suit him, that he had made it "to please
the woman and keep peace in the family," and that if he died and
left it there would be "one of the d    dest law suits on record,"
and that when they found it " hell would be out for noon."
Gentlemen, is this the talk of a sane man?  Is this such
language as men usually and naturally employ when speaking of
their wills? To me it seems the reckless, irresponsible, incoherent
language of a mad man. And many other expressions are proved
which are equally wild, reckless and inconsistent. I say inconsistent, and that fact alone, even if we should concede these
declarations to have come from a sane man, would rob them of
all value to you as testimony, for they are about equally balanced.
HEREDITARY INSANITY.
But gentlemen, there is one great fact proved in the case which
lies back of all these which I have named, and which lends to
them all a terrible significance. It is the fact of hereditary insanity in this man's family. The testimony shows that a sister of
Isaac Pierce died a raving maniac, her life taken by her own
hand, and a daughter of his, now confined in yonder Asylum, has
been hopelessly insane for many years. Here is the taint of
hereditary family insanity, a fearful malady which as we all know
is transmitted from one generation to another, and which though
it is often concealed, lying dormant in the blood, is liable at any
time to break out with fearful violence when roused by an adequate cause. In the case of Isaac Pierce the cause is apparent.
This terrible magazine of insanity in his blood was ignited, fired
by strong drink and excess. Here were forty years of constant




20                      ARGUMENT.
violation of physical and moral law to say nothing of trouble,
accidents and disease. Was not all this enough to explode the
magazine?
APPEARANCES AND OPINIONS.
Now, gentlemen, against all these facts which I have thus
arrayed before you to show that Isaac Pierce was of unsound
mind in the summer of 1871, are brought the opinions of witnesses
who swear that his capacity was good. I grant you that many*
witnesses and some of them of the highest probity have thus
testified. But let us look just a moment at the value of such
testimony. These witnesses I may divide into two classes-first,
drinking men, the boon companions of Isaac Pierce in his dissipation, who saw him much-and second, sober and reputable citizens
and townsmen, who naturally saw less of him, many admitting
that they seldom saw him. As to the first of these classes it is
evident that their testimony is to be taken with great allowance,
for if they were even in a condition to judge, they would still be
most naturally disposed to look very leniently upon the effects of
drink, lest they should condemn themselves, and as to all the
witnesses it is to be said that they judged with little knowledge,
from mere appearances.
Now appearances, gentlemen, are very unreliable and deceptive.
We can never safely judge in such a case from mere casual observation. Why, you may meet to-day, as I often do, a whole
squad of lunatics from our asylum, out for exercise under a guard,
and you shall discover nothing wrong in their appearance; you
shall not even be able to tell the guard or keeper in command
from the rest of them. It is related of Edmund Burke, the great
English statesman and orator, that after passing through all the
wards of a lunatic asylum he turned to his attendant and said,
"Why, I see no crazy men here."  And yet Burke was a philosopher as well as a statesmen. An instance once occurred in this
county where a young man, known to some within the sound of
my voice, was taken many years ago a hopeless maniac to an
Eastern asylum, and when he arrived there he turned upon his
attendant, overpowered him and came near leaving him in the
asylum as the crazy man, deceiving for a time the officers, who




ARGUMIENT.                      21
only discovered the right mnan by papers in possession of the
other! No, gentlemen, it will not do to judge from outside appearances alone. But whatever weight you give this testimony you
will not forget to put against it the opinions of the witnesses for
contestants, many of whom were in a much better situation to
observe and to know, that Pierce was not right in his mindduring
that summer of 1871.
I have thus, gentlemen, passed over this ground of my first
general proposition that Isaac Pierce was of unsound mind on the
29th day of July, 1871, and. could not therefore make and execute
a valid will. I have dwelt upon it at considerable length not
only because I deem it a very important branch of the case, but
because it also lays a very strong foundation, even if you deem it
standing alone as insufficient to warrant a verdict breaking this
will, for the two other general and independent grounds which I
shall urge.
ISAAC PIERCE, INTOXICATED ON THE 29TH DAY OF JULY. 1871.
I come now, gentlemen, in the progress of the argument to.my
second general proposition, which is-that rsaac Pierce qwts inccapable by reason of intoxication to execute this twill on' the clay
andl cat the time when it is allegqecl to have been madce.
You will see, gentlemen, that this ground is entirely independent of the other which I have been arguing, for no matter
what the previous mental condition of Isaac Pierce had been, no
matter how sane and sound he might have been when sober, it is
clear that he could not execute this will when drunk. I say this
because I suppose there can be no dispute as a matter of fact that
a man who is intoxicated, whose mind is clouded and confused by
drink, is incapable of planning and executing such a will as this.
Now the philosophy of this matter of intoxication I suppose to
be this-and I do not speak from experience-but judging from
reading and observation and common understanding I may divide
intoxication into three stages, first, exhilaration, second confusion
and third, stupefaction.  Now I shall not dispute that a man
might be able to make a will when in the first of these stages, but
I think it is manifest that he could not be when in the second or
third. The amount of intoxicating drink necessary to put him




22                      ARGUMENT.
into any one of these stages or conditions, would, of course, vary
with the individual. I shall contend that from the testimony as
to the number of drinks Pierce had taken that day when the will
was made he was then fully and well into the second stage, or
that of confusion.
THE ARGUiMENT FROM PROBABILITY.
Now, gentlemen, I begin the discussion of this branch of the
case by calling your attention to the argument from probability.
This is entirely legitimate as a consideration, and such an argument is frequently very powerful. I think it is so in this case and
that you must feel its force. What is probable?  Would Isaac
Pierce be likely to drink on such a day as the 29th day of July,
1871, is proved to have been?  Remember his wife Eineline
says he did not drink at all on that day, but made the will and
then went immediately home with her. Now, in the first place,
all the testimony shows-and I need not repeat it-that
Pierce drank constantly ahd heavily during that month of July,
1871; drank daily and was almost daily intoxicated.  Here is
strong foundation certainly for a probability that he might be
drunk on any particular day. In the next place this was a public
day, the first pioneer picnic day of the old settlers of the county,
of whom he was one of the earliest, many of whom he must have
met that morning on his way here, at Galesburg, along the road
and after his arrival in Kalamazoo.  Remember all the witnesses
have described him as a social drinker, a drinker at the open bar,
treating and being treated by his friends and companions. Remember further that John Mitchell, one of these companions and
a witness for the proponents, said that Pierce would be apt to
drink on such a public day as that. Now I ask, is it not highly
probable, is it not almost certain that Isaac Pierce would drink
with his old friends and companions on an occasion so suggestive
of conviviality and good cheer? He must have met hundreds of
them that day and been asked to drink scores of times. Do you
believe he then had the moderation, the nerve and the moral
courage to refuse? No, you cannot believe that.
Still again, gentlemen, you must remember in this connection,
what so many of the witnesses have said and what none have de



ARGUMENT.                        23
nied, that Pierce was a man at this time who became easily intoxicated; that when he once began to drink, when he took the first
glass, he kept on until he became completely under the influence
of liquor.
Now, gentlemen, put all these things together and say whether
it is probable that this man came here on that 29th day of
July, met and turned away from all this temptation, from the day
itself, with its excitements and fatigues, from all his old companions and their solicitations, from everything that would naturally
excite and arouse his appetite for strong drink, and went home
clear and sober-about the only day in all the month when he is
not proved to have been drunk? It is next to impossible that he
should have done so.
THE TESTIMONY ON T.HE SUBJECT.
But, gentlemen, strong as is this argument from the probability
of the case, we are not left to that alone. We have here a mass
of positive testimony on the subject, which is simply overwhelming, and which cannot leave any possible doubt in any candid
mind, as it seems to me. More than a dozen witnesses have testified that they saw Isaac Pierce on that day, some in Galesburg,
some on his way here, and others in Kalamazoo, and that he was intoxicated. The proponents have undertakento meet this testimony
and break its force in two ways, first by impeachment of some of the
witnesses, and second by attempting to show that the witnesses
were mistaken in the day.
CONTESTANTS WITNESSES NOT IMPEACHED OR MISTAKEN ABOUT THE DAY.
As to the question of impeachment, I shall have only a word to
say. It was a'very lame and feeble attempt which was made to
impeach the witnesses Bonner, Whiting, Miner, Elwell, and Loren
Pierce, and every one of these witnesses was triumphantly sustained by us. Now, a witness is not impeached, though five men
swear against hin, if five men equally as good swear for him, and in
this case, only a part of the witnesses were assailed by five impeaching witnesses, while every one was sustained by the full
number under the rule; and as to the character and weight of the
assailants and defenders, there can be no comparison. So I say,




24                     lARGUMiENT.
that none of our witnesses were impeached anid you could not disregard their testimony, even if they were not corroborated.
But, gentlemen, you will remember that it is only a part of the
witnesses on this point, that are assailed at all, —the rest are literally unassailable, many of them prominent citizens of the county,
and men of the highest probity. So we need have no difficulty on
the question of the veracity of the witnesses.
But, could the witnesses have been mistaken? That is what the
proponents urge, and we will look at that question a little now.
In the first place these witnesses speak of what they saw on a
day which they would be most apt to remember. It was not only
a public day, but a public day of a peculiar and most interesting
character, the first one of its kind which had ever occurred in the
county. Such a day and its sights and occurrences, I need not
tell you, would be very apt to he strongly imprinted on the memory. We touch here that great law of association which is so imnportant a part of mental philosophy. We remember under this
law of the mind, one thing by reason of its connection or association with annother, and the greater the impression of the main fact,
the stronger will be the impress of the minor facts which are
grouped around it. Hence the occurrences of an ordinary day,
one not distinguished from the rest, may make little lodgement in
our minds, but what happens on a day that stands out clear and
distinct from all others, like a star in our memory, leaves a vivid
and lasting impression.
Why, gentlemen, we can all remember even the little incidents
of some 4th of July or Thanksgiving day, away back in our boyhood, while the common undistinguished days of that time, with
their facts and incidents, have become mingled, obscured or lost to
our memory. Do you not know this to be so?
Again, gentlemen, the witnesses tell you, some of them at least,
that they spoke to Pierce about the pic-nic; thus adding a most
vital corroboration, and showing conclusively that there could be
no mistake about the day. The testimony of Andrew J. Shakespeare, the editor of the Gazette, is very important as showing this
coincidence of the day and Pierce's intoxication. He says that it
was the day of the pioneer picnic that he saw Pierce coming up




ARGUMNENT.                      25
his stairs on his way to Clark's office, intoxicated, and that this
was b/efore he subscribed for the Gazette, which he knows to have
been in the Spring of 1872. And there is still another piece of
corroboration in the fact that a half dozen of these witnesses fix
the time to have been when Hiram Chipman was along, and we
have proved from the Probate records that Hiram Chipman died
on the 10th of September 1871, thus showing conclusively that it
was not any occasion in 1872, as the theory of the proponents
would have it, that these witnesses saw Pierce intoxicated.
THE STRENGTH AND VOLUME OF THE TESTIMONY.
Now, gentlemen, coming directly to the testimony itself, we find
here a mass of proof entirely consistent in its different parts and
with all the probabilities, as I have shown, to.back it. I know it
is objected on the other side that some of these witnesses are men
who drink to intoxication, and are therefore unworthy of credit.
To that I reply that in proving Isaac Pierce to have drank on the
day in question, it was not only natural but necessary, that we
should call the men who saw him drink and who drank with him;
and besides it does not follow that a man who drinks will not tell
the truth. But it will not be questioned that some of our witnesses on this point are men of the highest truth and honor, and
their testimony entirely corroborates the others. I will not stop,
gentlemen, to notice the little unimportant differences as to time
day, people who were present, and other non-essential circumstances which have been commented upon by the counsel. These
things, gentlemen, found in the stories of a dozen men, four or
five years after the occurrences of which they speak, are so far from
being evidence of the falsity of their testimony that they strengthen the presumption that it is true. Why, look at it a moment,
gentlemen, how would it be if in every one of these little accompanying circumstances of the main fact, there was absolute and
perfect coincidence in the testimony-an exact fitting and correspondence like the different parts of a machine? In that case it
would be almost certain that the whole story was fabricated. No
honest witnesses, years after the fact, would remember all these
things precisely alike. We do find here in this testimony enough
of agreement and a substantial unity of statement. The witnesses




26                     ARGUMIENT.
give time and circumstance with all reasonable certainty, and tell
a consistent and reasonable story.
Let me now recall to you the substance of this testimony that
you may take in at one view its overwhelming weight and importance. I do not propose to give you the details, the language of
the witnesses, nor all the circumstances, but the substance, the
gist of what they say on this one vital point in the case.
Levi Taylor, the hired man who worked for Pierce in the month
of July 1871, saw him and his wife when they started for Kalamazoo, between 6 and 7 o'clock on the morning of the 29th, and he
swears that Pierce, in his opinion, had then had his morning
drink, and was already under the influence of liquor.
Willard Johnson, a farmer of Comstock, who had known Pierce
since 1844, says that on the morning of July 29th 1871, between
8 and 9 o'clock, he was at the hotel in Galesburg when Pierce
drove up with his wife; came in and drank whisky twice with him
at the bar, when his wife came to the door and told him they had
better go as they had business to do, and they then drove off towards Kalamazoo.
Lewis C. Miner, of Galesburg, was also at the hotel when Pierce
drove up with his wife, between 8 and 9 o'clock, and saw him
drink twice, thus corroborating the witness Johnson. Afterwards,
at about 11 o'clock of the same day, this witness met Pierce at
the American Hotel in Kalamazoo, and saw him drink with John
Sager and others, and still later saw him come out of a saloon on
Main street.
John R. Levens, on the day of the pioneer picnic, overtook
Pierce between Galesburg and Kalamazoo, and thought him intoxicated; saw him afterwards on the same day at the Kalamazoo
House, quite intoxicated.
Henry W. Bush, Supervisor of Kalamazoo, saw Pierce on the
day of the first pioneer picnic in Kalamazoo, between 10 and 11
o'clock, A. M., very much intoxicated.
William Webster drank twice with Pierce at the American Hotel at about 11 o'clock on the day of the first pioneer picnic-Hiram Chipman was there-saw Pierce later in the day, intoxicated.




ARGUMENT.                       27
John Sager, who had known Pierce 30 years, saw him in Kalamazoo on the day of the first pioneer picnic, and drank whisky
with him 3 or 4 times at the American Hotel, and at a saloon on
Portage street. Hiram Chipman came to Kalamazoo with him
that day.
Ora Bush, who had known Pierce many years, saw him on the
29th of July, between 10 and 11 o'clock at the corner of Main and
Portage streets very much intoxicated. William Webster was
with him.
Dr. F. H. Chase, saw Pierce on the corner of Main and Portage
streets about 11 o'clock A. M., on the 29th of July 1871. He was
intoxicated and staggered. Ora Bush was standing near at the
same time.
J. C. Clermont saw Pierce on Main street, intoxicated, the day
of the first pioneer picnic.
Andrew J. Shakespeare, publisher of the Gazette, saw Pierce
on the 29th of July, coming up the stairs leading to his officewhich you will remember was on the same floor with Clark's office
-apparently very much intoxicated, and helping himself by the
railing. It was about 11 o'clock A. M.
Geo. Elwell saw Pierce at the American Hotel in Kalamazoo,
on July 29th, at about 11 A. M., and drank with him. Afterwards
drank with him at a saloon on Portage street.
Geo. Whiting saw Pierce between 8 and 9 A. M., on the 29th
of July at Galesburg, at the hotel, and saw him drink twice. His
wife was with him. The same day, between 4 and 5 in the afternoon, he returned alone and said he had been to Kalamazoo
and signed the death warrant of his first wife and children. He
was intoxicated.
And then to round out the day and complete the picture, Levi
Taylor tells you that Pierce returned home alone the latter part of
the afternoon of that 29th day of July, intoxicated. You will remember that the testimony shows that his wife went home on the
cars because she was afraid to trust herself to his driving of the
team on account of his intoxication.




28                      ARGUAENT.
THE OBJECTIONS AND DEFENCES URGED TO THIS TESTIMONY.
Gentlemen, is there not here an overwhelming case? It is in
vain for the counsel on the other side to say that they have met
and removed this mass of testimony out of the way. They may
carp, and criticise and denounce, but it remains in all its force
and power to compel conviction.
In such a concurrence of voices it will not avail to attack a
single witness, nor even a half dozen, when there are more left to
support and sustain them. The young counsel sneered at the venerable Ora Bush. Gentlemen, I have known that man for twenty
years, during which I have been glad to call him my friend, and I
have never known in all this county a man who has stood up for
right and truth and justice more bravely, unselfishly and stoutly
than he. Wherever he has seen the strong oppress the weak, or
his fellowman in trouble or distress, there this brave, kind-hearted
old man has been to defend and to succor, and when he shall be
gathered to his father's, many a poor man who has felt his helping
hand in the time of need, many a forlorn widow, who in deepest
trouble and distress has found in him a protector and benefactor,
will rise up and call his memory blessed. God be thanked that in
these days when so many men are base and selfish and cowardly,
I can truthfully speak such words as these of a quiet, plain citizen, whose deeds of benevolence and charity have been as unostentatious as they are noble and unselfish. Pardon this digression,
gentlemen, but it gives me great pleasure, that in this high and
ample presence I am able in the name of common humanity to
render my poor tribute to this brave and chivalric old man.
But, coming back now to the case, gentlemen, I will examine
the separate defences which are urged, from the outside, so to
speak, to the strong array of testimony which we have produced
in support of the proposition that Isaac Pierce was intoxicated at
the time this will was made. I now allude to the matters which
they have undertaken to support by affirmative testimony, and I
shall have to deal with their witnesses and not with their criticisms of ours.
And first, gentlemen, it is urged that this testimony which we
have put into the case on this branch of it, applies to a different




ARCGUMENT.                      29
day from the 29th day of July 1871-that our witnesses are all
mistaken, that the occasion when they saw Isaac Pierce drunk in
Kalamazoo was not on that day, but on the 30th of May 1872,
which is what is called memorial day. Now, gentlemen, this
won't do at all. Aside from the great improbability, if not impossibility that all our witnesses should be mistaken in such a matter, there are plain discrepances and contradictions in this theory
which utterly destroy and disprove it. Take the matter of the
procession. Somre of our witnesses testified, you will remember,
that Pierce staggered into a procession moving to the picnic
grounds as it passed from Main into Portage street at about 11I
A. M. To meet this the attempt has been made to show that
there was a procession on the 30th of May 1872, which might
have been the one the witnesses alluded to. But most unfortunately for this theory the procession of the 30th of May is shown by
their own witnesses to have been formed at 3 o'clock in the afternoon, instead of 11 o'clock in the forenoon, and to have moved
from the intersection of Main and Burdick streets toward the West
instead of down Portage street towards the East!  That is a
pretty wide gap in the theory.
Again, Mrs. Pierce testifies that on this 30th of May 1872, which
she says is the only day such an occurrence ever took place as
her leaving Pierce drunk in Kalamazoo and going home alone on
the cars, she took the train about 2 o'clock P. M., for Vicksburg,
expecting to arrive home by the train on the Peninsular Road,
which was due at Vicksburg about 6 o'clock P. M., but found on
her arrival there that that train was late many hours, so she could
not reach home that day, and consequently stayed over night at
Vicksburg, arriving home the next forenoon. Now this was a
very admirably contrived piece of testimony to fit with Levi Taylor's, as to the circumstance of their coming home separately on
different days and by different conveyances, so as to make it appear that our witnesses had mistaken the day, and she had Flint's
diary or hotel entry to help her out as she thought. But unfortunately again for her and the theory, we have shown by the testimony of L. D. Dibble, the President of the Peninsular Railway,
from the unerring records of the road, that the afternoon train on




30                      ARGU'MENT.
that 30th of May 1872, was only ten minutes late, and that it arrived that very evening at Climax at about 7 o'clock-long before
dark! So the contrivance fails, and she is left with no excuse or
reason why she needed to stay over night at Vicksburg in order
to make the facts correspond to what occurred on the 29th day of
July, in the year before.
THE TESTIMONY OF THE SURSCRIBING WITNESSES.
And now, gentlemen, I come to what is claimed to be the
strongest possible testimony of all in defense of this will,-the testimony of the two subscribing witnesses. It is said that these are
the witnesses whom the law places around the testator and whose
testimony the law regards with peculiar favor. In this case they
both swear to the mental soundness and clearness of Isaac Pierce
at the moment when this will was signed by him. Now- here is
strong testimony on its face, I grant you, but let us see if it be
conclusive. Here in the first place is the testimony of Geo. Thomas Clark, the attorney and the draftsman of this will, taken on the
hearing in the Probate court and read before you, he being now
dead. He says Pierce was sound and clear and sober. Well,
gentlemen, that is pretty strong, but who was Geo. Thomas
Clark? Let the testimony answer. He was the man who in 1852
drew, at the instance of Pierce, the separation papers when the
latter so ruthlessly put away his first wife Catharine; he was the
man who ever after that was the conveyancer and counsellor of
Pierce, whose hand may be seen all through the history of these
parties and this property for the last twenty years. He knew
Isaac Pierce, his character and habits, and every foot of land which
he owned. He was a man also advanced in years, and like Pierce,
he had long been addicted to strong drink; keeping it, according
to the testimony, in his office and being frequently, in his latter
years, intoxicated.
Now, gentlemen, such a man would not be very particular, even
if sober himself, to demand sobriety in others. He would not be
very scrupulous as to the condition of Pierce, or whether he could
fully understand or comprehend the will which he himself understood, and which he had drawn up for Pierce to execute. And
right in this connection there is a most significant fact to which I




ARGUMENT.                        31
call your attention. When Clark, who was alone with Pierce,unless his wife Emaline was there-needed another subscribing
witness to answer the requirement of the law, what did he do?
Did he step across the hall to the  sazette office where he could
have found a dozen men, or down to the foot of the stairs where
was a bank on one side and a store on the other, both full of
men? No, but old man as he was, seldom being seen on foot in
the streets, he goes on that hot July noon, clear up through the
streets, thronging with men he knew, to the office of A. T. Prentice, a friend and boon companion of his, who was in the habit of
drinking with him, as Prentice himself. confesses. Why all this
trouble, gentlemen, without some good reason?  Any man who
could write his name would have done for this formal part of a
subscribing witness. But suppose Pierce was drunk, then Clark,
of course, would not want any unfriendly scrutiny of that fact.
Gentlemen, is there not here, I ask, in this unusual and extraordinary conduct of Clark, a circumstance well calculated to arouse
your suspicion and challenge your attention?
And in saying this I have already half disposed of the testimony
of Prentice, the other subscribing witness. But not only was Prentice the friend of Clark, and in the habit of drinking with him,his testimony itself is comparatively worthless on its face, for he
confesses, gentlemen, that he did not then know Isaac Pierce, except by sight; that he only saw him at the time of the signature a
very few moments, during which Pierce was sitting in a chair holding the will before him; that he gave only a formal and brief assent to the questions which Clark put to him; that he noticed
nothing wrong about him and thought him perfectly sober.
Now, gentlemen, I say this testimony is comparatively valueless,
for you will remember that nearly all the witnesses say that Pierce
could stand up and walk under the effects of liquor; that he had to
be pretty drunk to get clear down, and Dr. Seely, his own physician and one of their leading witnesses, admitted on his cross-examination that a stranger seeing Pierce sitting at a table reading
a paper, apparently, which he held in his hand, and hearing him
answer a few questions in the affirmative, could not tell whether
he was intoxicated or not-that he might be too drunk to execute




32. ARGUMENT.
such a will as this and the observer see nothing wrong in him. I
submit to you that this testimony of Dr. Seeley, a man who knew
Pierce well, covering as it does and as I intended it should do
when I put the hypothetical question to him, the whole testimony
of Prentice, effectually answers and disposes of this subscribing
witness, and strips his testimony of all value.
THE TESTIMONY OF WM. FLETCHER-A DILEMMA.
But it is said that there is still another witness who was present
and saw Pierce on this occasion; that William Fletcher saw him
in Clark's office that morning and talked with him about this will,
and that he was perfectly sober. I grant you that Fletcher so
testified, and while he is not by any means an impartial or uninterested witness, having been at that time the friend and- law
partner of Clark, and since one of the attorneys for these proponents, yet I shall not contend that he has sworn corruptly or to any
intentional falsehood.
How then shall I dispose of Fletcher whose testimony, if wholly
true, is fatal to our case! Gentlemen, I shall show you that he is
mistaken in the day,-and that is enough. If this was not on the
29th of July 1871, then it does not touch this case, however true
in every other respect it may have been, for it was unquestionably
on that day that the will was made. Now you will recall that
Fletcher on his cross-examination gave as his only reason for identifying the day as the 29th of July 1871, the fact that he had a
garnishee suit before him as a magistrate on that day and his
docket showed that this suit was adjourned, and it was by the association of this circumstance with his going to Clark's office the
same morning that he was able to remember the precise day. He
told you further that it was between 9 and 10 o'clock in the morning that he saw Pierce and conversed with him in the office of
Clark; that nothing on his docket or books indicated anything else
which he did on that day; that he did not remember any pioneer's
picnic or unusual stir in the town, and he could not tell how he
was occupied for the rest of the day.
Now, gentlemen, you will not soon forget how after the witness
had fairly laid himself open in this way, he was confronted with
his own docket, where spread out on its ample page, in his own




ARIGUMENT.                      33
handwriting, was the full record of an extraordinary inquest which
he held on that very 29th day of July over the remains of Father
Label, the Catholic Priest!. This was a case which excited great
public interest. The circumstances had been peculiar and tragic.
On the first of April before, the good priest, whose form was so
familiar upon our streets, had been taken off suddenly, in the night
time, — the announcement that he was dead, reaching the public
ear before any tidings of his sickness, and the very morning after
the day when he had been seen by hundreds in the full glow
of health and activity. The community was shocked and grieved,
for Father Label was popular in Kalamazoo. Then followed the
solemn and impressive funeral with all the stately and imposing
rites of the. Catholic Hierarchy; the vast crowd, the officiating
bishop, surrounded by many priests; the long, sad procession
winding through our streets towards the cemetary on the eastern
hillside-a mournful and magnificent pageant, worthy of him who
had ministered so long and so faithfully at the altars of the
Church.
But the death of the good man had been so sudden and untimely that suspicion was aroused and began to work; all the attending circumstances were scanned and talked over by excited
people. XWas there poison here?  If so, was it suicide, or was it
murder?  It could not be suicide, for Father Label was a man
hopeful, cheerful, full of life-it must be murder. So the talk and
the feeling ran on for days and weeks, and even months, until
finally an investigation was demanded by the public, and on the
29th day of July, while Isaac Pierce was here in Kalamazoo making this crazy, drunken will, Fletcher as the magistrate, was summoning the coroner's jury before him to make solemn inquest into
the facts of this sudden and suspicious death. And not only was
Fletcher doing this, but he tells you himself that he went personally with the men and superintended the exhumning of the bodynot satisfied with his duty as a magistrate he voluntarily undertook to be an under-taker!  Fletcher, gentlemen, was full of business that morning with this double duty. I can imagine how he
bustled about on that hot July forenoon, magnifying his officewith this great inquest, with the gravediggers and the lawyers,




34                      ARGUMENT.
with the constables and the witnesses, with a live jury and a dead
body on his hands. How much time do you think he had to go
to Clark's office on a particular business?
Why, gentlemen, the man himself first told you that he did not
think it was the day of the inquest that he saw Pierce. He remembers the inquest and all its circumstances fully and vividly
-he could not forget that-and he had not associated the two
matters at all in his mind. He thought the inquest was on some
other day; he was at first quite certain that it was. But then he
was confronted with his own docket-the very docket he had
appealed to as showing he had a little garnishee suit adjourned
that morning, and which he said showed no other business before
him that day! With what blank amazement he contemplated the
long entry in his own handwriting. Yes, there it was; there
could be no mistake about it; there was this great matter of the
inquest on that day. It was a poser, gentlemen. The witness is
an honest man; he had not meant to tell a lie, but he was fairly
caught; he was evidently mistaken.
Now, gentlemen, Fletcher isn't much of an apostle, but when
he stared with troubled countenance upon that docket, and the
whole horrid truth flashed upon him, I could fancy him in his
secret soul crying out in the language of an apostle, " O, wretched
man that I am, who shall deliver me from the body of this death?"
So, gentlemen, I think I have effectually disposed of these three
witnesses whose testimony is chiefly relied upon to show that
Isaac Pierce was sober and in the full possession of his faculties
when he signed this paper. As to the testimony of his wife,
Emeline, who has the greatest personal and pecuniary interest in
the result of this trial, it is safe to say that you will naturally regard that with very great caution and distrust, and you will not
be apt to rest your verdict upon it. But I could show you, gentlemen, that even this woman who swears so positively that Isaac
Pierce was so clear and sober on that day, is not only disputed by
a dozen witnesses, but is also covered all over with selfcontradictions, with inconsistancies and improbabilities. Further along in
my argument when I come to speak upon the next branch of the
case, where she chiefly figures, I shall have occasion to discuss her




ARGUMENT.                      35
relations to this case, her character as a woman, and her credibility as a witness. It is sufficient now, on the proposition which I
am discussing, to emphasize the powerful piece of corroboration
which she furnishes for us in admitting that there was an occasion
when she came here with Pierce in the morning, by team, in the
summer time, through Galesburg, just as we have alleged it, and
went home alone by the cars because he was drunk, leaving him
to return, just as we say he did, on the 29th of July. Here is a
confession of great importance and significance. Such a state of
facts did occur then, and we have only to find their true date.
This, I have already shown you, must have been the 29th of July,
1871, and not the 30th of May, 1872.
So, gentlemen, in concluding upon this branch of the case, I
think I have established the proposition that Isaac Pierce was
intoxicated on the day and at the time when this paper was
signed, and that it is not therefore his conscious and intelligent
act in the law. Can there be any doubt of this in your minds?
Can there be any question as to where the preponderance of this
testimon lies? Gentlemen, we have made an overwhelming case
here, and it cannot be that you should remain unmoved and unconvinced by this great mass and array of testimony. And if
you are convinced, if you do find that Isaac Pierce was intoxicated, then you do not need to look further. This is enough,
though you should find against me on every other point in the
case; though you should find that no undue influence dominated
over this man's will, and that when sober his mind was sound, for
drunkenness, according to the old Latin proverb, is a short madness, and no drunken man can make a will; certainly not a will
so long, intricate and complicated as this one.
TIlE QUESTION OF UNUI)E INFLUENCE.
I approach now, gentlemen, the discussion of the last main head,
or division of the argument —the question of?undue ib'Jtence.
And here, while the ground is entirely independent in-law and
fact from the two other main propositions which I have examined,
I ask you this pregnant and vital question at the outset: If in
your judgment you should find this mental, physical and moral
weakness which I have depicted, not complete; if it still leaves




36                      ARGUMIENT.
testamentary capacity, does it not make it more probable that this
old man should fall under the influence of a strong minded and
artful woman?  Remember, it was upon this wreck of a man that
the influence of this woman was exerted.
What do we mean by undue influence?  I think, gentlemen,
that this is the true test here: Is this such a will as Isaac Pierce
would have made if he had been left alone and wholly to himself;
if he had been left entirely free to carry out his own mind and
intention? For I hold that this could not be a case of the exercise of a legitimate and healthful influence by the wife over the
husband. So, considering all the proved and unquestioned relations of these parties from the begining to the end; considering
too, their unhappy domestic state in the later years and his undisputed habits, I say it could not have been a case of fair influence
-it was dictation, intimidation, coercion, or it was nothing.
Was this will made as he wanted to make it?  Did it express
his real sentiments and feelings towards his children and the
objects of his bounty?
Now, gentlemen, we are not left wholly in the dark as to the
kind of will which Isaac Pierce in his calm, sober and better
moments desired to make.
EXPRESSIONTS OF PREVIOUS INTENTION.
If we look into the testimony we shall find that Isaac Pierce
at many different times before this will was made gave expressionI to his real wish and intention in regard to the final disposition of his property among his children and dependents. Let me
re-call some of these to your minds:
Away back, in the early days upon the farm, as his sons Loren
and Horace tell you, he used to encourage the boys in the midst of
their toil by saying to them: "You are not. working for me but
for yourselves. All this property will be yours." And the boys
believed him and worked on hopefully through the long surnmer
days.
He told John Bloom, after his separation from his first wife,
that he meant his property should all go to his children.
He told Dr. Babcock, as long ago as 1856, when he was sick
and thought he was going to die, that he had not made the pro



ARGUMENT.                       3
vision he had intended for his first wife and children. He spoke
particularly of Mrs. Parish, and said he had intended to do more
for her; and he begged the doctor to save his life and restore him
to health so that he should not die and leave this all undone.
In 1855, two years after he put his first wife away, he told
Geo. Whiting that "Aunt Katy should have all she needed-that
he had driven her away from the home she had helped to make,
but calculated she should not come to want."
These are some of his earliest expressions. That his good intentions were never changed,we shall see as we come nearer the
time when this pretended will was made.
In July, 1871, the very month it was made, he told his daughter, Lucinda Milliman, that he had never helped her but he intended to do so.
In the spring of 1871 he told Peter Bovee that if he was called
away suddenly he wanted things left to suit himself-that he was
going to leave his property to his own children.
In 1870 he told Henry Hobart and D. T. Dell that he did not
know as he had given his first wife enough.
In 1871 he told Henry Troutwine he should give Emeline what
she brought into the family. The rest of his property he designed
his children should have and they should share equally. He said
he had never given his daughter Lucinda anything and he intended to give her a good, nice property. He should do nothing
for Jennings Hadley.
Here, gentlemen, we have, in these expressions, the constantly
repeated intentions of this man with regard to the final disposition
of his property, for a period of twenty years, and clear down to
the very month when he made this will; and these expressions
are always consistent-always to the same purpose.
EXPRESSIONS AFTER THE WILL WAS MADE.
Now, if we turn again to the testimony, we shall find that after
the date of this will he continued still to talk in the same way as
before; continued still to express his intention to provide for his
first wife and children. I grant that there are contrary and inconsistent expressions proved after this time, but it is a most signifi



38                      ARGUMENT.
cant fact as bearing upon this question of undue influence that
Isaac Pierce is still found talking in the old way, and telling his
friends and neighbors of his intention to do things exactly contrary to what he had been made to say and do in this will.
So, gentlemen, we find him saying to William H. Tubbs, in
June, 1872, that he had deeded one hundred acres of land for
Emeline's support-(that you will remember was a long time before the will)-and he was not going to give her any more. That
he had made his will, but he never intended to die and leave it on
the face of the earth.
He told his daughter Polly Clarke, the Sunday before he died,
that he was going to make a division of his property among his
children; that he would either give Loren the Elwell forty or the
Jones forty. The Elwell forty is given to Emeline in the will.
He told Stephen Smith, a week before his death. that the Hadley boys should not get one cent of his property-said he calculated to make a will and leave his property' equally among his
children.
He told James Shaver, in 1872, that he had made a will to suit
his wife, but the next time he went to Kalamazoo he was going to
make one to suit himself.
He told Andrew J. Spicer, while in California, in 1872, that he
had got to go home and settle up his business; that he had made
a will but it did not suit. him, and if he did not get home there
would be " one of the d    dest law suits on record."
And finally, in that same year, 1872, he told Ephraim Bonner
the same thing in language still more emphatic and blasphemous,
saying that if he should die and leave that will then " hell would
be out for noon."
From all this, gentlemen, we can see what kind of a will Isaac
Pierce would have made if he had been let alone. That he did
not make such a will as, from all these expressions, he clearly
wished to make, was due to the dominating and controling influence of another, substituting other purposes and intentions in the
place of his own. So I say, gentlemen, that if you find this state
of facts; if you find that this man's will did not express his own
mind, but the mind of his wife.Emeline, and was made in her




ARGUrMENT.                      39
interest, then it is a case of undue influence and you must so pronounce it.
EMELINE-THE WOMAN IN THE CASE.
And now I come, gentlemen, to discuss more clearly the relations of this woman, Emeline, to these facts. She is the woman in
the case; and not the first one, either, who has figured in cases like
this and been accused of exercising undue influence over men.
Such cases and instances are very common in the courts. They
are, indeed, of longer standing than the courts; they are as old as
human nature itself; for I do not forget that, according to the
sacred legend, it was the first woman who unduly influenced
the first man to eat of the forbidden fruit.
I am to show you here the powerful influence of an artful and
designing woman over a man of rough nature and strong passions-a woman twenty years younger than the man, and first
securing her influence over him through the unlawful gratification
of his strong and unregulated passions.
HISTORIC INSTANCES-THE MISTRESSES OF KINGS.
Is there any interent improbability in such a case? Why, gentlemen, history is full of instances like this-instances where great
monarchs and rulers of men have fallen, through the same source
of human weakness, under the influence and control of the other
sex. Who has not heard of the mistresses of kings and the part
they have played in the history of the world? Louis XIV, of
France, was called " The Grand Monarch" and "Louis the
Great," so splendid was his long reign and so powerful was
he among the sovreigns of the world; and yet, though this man
was an absolute monarch over France and dictated law to all
Europe, sending out his great marshals and armies to victorious
fields of conquest, and ruling in his cabinet with arbitrary and
autocratic will, he himself was conquered by the charms and
blandishments of a solitary woman,-a woman without royal
blood, a butchers daughter, who ever after, until the day of his
death, exercised supreme influence over him, dictating war and
peace-even compelling him in the interest of her religious fanaticism to revoke that royal edict of Nantes, and let slip the dogs of
religious persecution, deluging a whole region in innocent blood.




40                       ARGUMENT.
I could give you many more signal instances of this kind. The
very next successor of this great king of whom 1 have spoken, the
next Louis in that long line, had his Pompadour, as the other his
Maintenon-another woman from humble life, who ruled the ruler
of the nation with an artful and unbending will. And there was
the English Charles II, with his famous mistress, and in our recent times the wayward and romantic Lola Montez, the dancing
girl who came to rule the king in a European Court. Shakspeare,
who has illustrated all human nature and passion, has drawn a
powerful picture of woman's influence in his Lady Macbeth, who
urging her guilty but hestitating lord to the terrible deed of
blood, says to him
"Only look up clear;
To alter favor ever is to fear;
Lecave all the rest to mne."
Why, getlemen, these counsel say to you, that it is impossible
that the wife of this man could have had this influence over him
-that Isaac Pierce was a self-willed, strong man. A strong man!
WTell, was he stronger than Sampson, who could tear down the
gates of a city?  And yet, Sampson, gentlemen, was weak
enough when his head reposed in the lap of his Delilah. So it
was with Isaac Pierce. Rough, and strong as he was by nature,
he came at last like Sampson, through the same channel of influence, to obey the will of an artful and designing woman.
ISAAC PIERCE AND HIS FAMILY IN 1852.
Now, gentlemen, let us turn to this testimony and see when
and how this influence began. Let me take your minds back to
1852, and show you Isaac Pierce there with his family on the old
homestead, at Climax. Married to his first wife in the State of
New York, in 1824, he had removed with his young family to
Michigan ten years later and had settled down upon his first purchase of land in the beautiful region where he continued to live
during all this history, for nearly forty years, until the day of his
death. At this time-185l -he had with him besides his wife,
"Aunt Katy," as she was afterwards called, six children, ranging
in years from sixteen up to twenty-seven-three boys and three
girls. He was now about fifty years of age and the possessor of




AiGUMIENT.                      41
eight hundred and fourteen acres of land-eight hundred and
sixty-nine acres being all he owned at the day of his death.
The story of this family had been like the story of other pioneer
families in this region, only a little rougher and harder. They
began with little and they worked hard, boys and girls alike-the
daughters and the mother frequently working in the fields with
the men, and the testimony many tinmes shows us "Aunt Katy"
bringing with her own hands the family wood from the field to
the house. "We all worked hard," say these children on the
stand, and so testifiy, also, all the witnesses who knew them in
those early days. Isaac Pierce at this time, though a rough, austere man, seems not to have been an unkind father, and he was
well disposed towards his family. Drinking had not got to be so
settled a habit with him and he worked hard with the rest. He
llad overcome all the difficulties of a new country and brought his
family safe through all the trials and dangers of that new home;
his judgment had been good, his plans had worked well, and
he was a man now in easy circumstanes and comparatively rich
among so many of his less prosperous neighbors.
THE BEGINNING OF TROUBLE.
But a great trouble was about to fall upon that quiet and peaceful family. In the late summer of that same year 1852, Isaac
Pierce met this woman, then Mrs. Emeline Hadley and an interesting young widow, in her mourning weeds for her husband who
had suddenly died in the month of July, in the town of Penfield,
in the county of Calhoun, which was their home. She met Pierce
at Battle Creek -it seems she knew him, at least by reputation,
before-and applied to him to become administrator of her husband's estate. He seems to have been struck with her person
and her request and at once undertook the duty. And then cominenced his relations and intercourse with her, destined to change
the whole course and current of his after life. He began soon to
make visits to Penfield, which were frequently repeated, and we
catch a glimpse of him defending her law suit at Battle Creek.
SIGNING THE SEPARATION PAPERS.
Pierce is soon infatuated and nothing can now stand in the way of
his dreadful purpose. All his - ungovernable passions are roused




42                      ARGUAIENT.
and he turns fiercely upon the wife of his youth as an obstacle in
the way of his new and unholy desires. You remember that in
the solemn night time, the youngest child, Lucinda, had heard her
father's voice, in high and terrible words, demanding that her
mother should consent to a separation and leave her home and
children forever. At last, by the most terrible threats and commands-by the use of language too shocking and awful for me to
repeat, he compels her to come to Kalamazoo, where this same
Geo. Thomas Clark, the adviser and tool of Pierce, had drawn up
the separation papers for her to sign. You remember these papers, gentlemen, with their false and lying preamble, "Whereas,
unhappy difficulties have arisen between the said Isaac and his
wife Catharine."  What difficulty had she made?
The wretched wife at first could not sign the papers. She took
the pen, officiously put into her hand by Clark, and t.hen burst
into tears, saying she could not do it; "she could not sign away
her home and children."  The superservicable Clark is ready to
urge her; to tell her of his brother's case in England, and how
that was managed. Pierce stands by, over-awing her by his presence
and by the stern and unbending purpose which she sees written
in his face. At length she yields, takes the pen, signs her name
and turns weeping and sorrowfully away. Then, with a heavy
and broken heart she returns for a brief season to the home where
she had worked so long and endured so much for her husband and
her children.
It was in the month of November that Pierce brought Mrs. Hadley
into his family at Climax. Up to this time these children tell you
Isaac Pierce had lived peacably and pleasantly enough with his
wife.  But a terrible domestic cloud had now begun to gather.
Quarrels and high words begun to be heard by the affrighted
children between the father and mother. Pierce leaves his wife's
bed; he makes no conversation with her; he does not treat her
any longer as his wife, but instals Mrs. Hadley at the head of the
table, and is even found in the night time sharing her room and
bed. Aunt Katy passes around uncomplaining, but sad and frequently in tears.




AUiGUMENT.                        43
THE CULMINATION OF THE TRAGEDY.
Finally the awful climax of her troubles comes-the day of fate
and doom to this poor woman when she is sent away forever from
her home; taken away by the orders of this infatuated and
infuriated man, who had once solemnly sworn at the altar to love
and cherish her; taken with a few cheap and humble articles of
househould furniture and sent, by a back way, over the hill to the
little log house in the hollow which was to be her future abode;
taken while protesting and crying out in the agony of her soul
that she could not go-that she could not thus leave the home she
had worked so hard to make, and the children she had nourished
and loved.
How can I picture to you that scene of domestic desolation and
ruin-that terrible scene of a wife's dethronment and banishment?
Gentlemen, I have heard the great actors and tragedians of this
generation who tread the nmimic stage and thrill and melt excited
thousands with their delineations of human sorrow and passion,
but I have heard from the lips of Lucinda Milliman, on that witness stand, the story of a real tragedy in huyible life, more pathetic and powerful than any imagined griefs of kings or queens, or
any catastrophe whatever of human greatness.  That agonized
wife and mother in the midst of her weeping children; her tearful protestations and pleadings-the demoniac husband and father
standing by, lost now to all feelings of gratitude and pity, and
hurrying up the cruel preparations for her departure-oh! gentlelnen, it was a spectacle to make the blessed angels weep!Well might the wretched mother have cried out in the homely
but pathetic language of Michigan's own poet"Over the hill to the poor-house-my children dear, good by;
MIany a night I've watched you when only God was nigh;
And God will judge between us; but I shall ever pray
That you may never suffer the half of what I do to-day."
Gentlemen, a scene'like this must melt and and move all human hearts. It brings to our minds that other scene enacted upon
a royal stage, between crowned heads, over which the world has
hung and wept for years, where a great Emperor put away the
wife of his youth-the wife who had loved him and helped to
place him on his throne. That separation and banishment have




44                     AIumU.IElsT.
come to be one of the touching stories and tragedies of history;
but human nature is the same in farm house and palace, and this
tragedy in humble life, appeals as spontaneously and powerfully
to the deepest and tenderest sympathies of all our hearts. How
overmastering must have been the influence to drive this man to
such a crime; how cool and calculating the disposition of this
woman, Emleline, who could look calmly on and witness it! I
turn to yotu Oow and ask yot,1 this all important question,: If"
this won-man  tho sits i ere could make Isaac Pierce dto such a
deed cas this in the day of his strength and 2:rime, could she
not inrfluence him in the day of his weakness and decline to macke
this will?
Gentlemen, this was a horrid piece of business-blasting and
-withering to the good name of the living and the dead alike. And
yet I have heard here a wretched plea in defense of it-a plea
put forth by this guilty party to it-the plea that the banished wife
was not neat and tidy in the management of her household! God
of mercy! what a defense is this? Was it not enough for this poor
old woman to suffer, to be exiled and driven from her home, to be
crushed and outraged in her deepest affections, to have her life
blasted by this great grief? Was not her cup already full? Did
it need that this insult should be added to all the rest before
she dies? And what do you think, gentlemen, of that disposition. which prompted such a plea as this?  "Aunt Katy worked
hard" "'she labored faithfully for her husband and children""C she backed the wood up to the house "-" she did the best she
could."  That is what the witnesses say.
"She did as well as she could," reluctantly says one of the witness who comes here to heap this insult upon her old, gray head.
Who could do better than that?  And was Isaac Pierce, from this
testimony, the man to complain of untidiness in his wife? Gentlemen, I dissmis this wretched plea without further words. The
proponents are welcome to all they have made by it.
AFTER YEARS-THE INFLUENCE OF EMELINE NEVER BROKEN.
Gentlemen, the influence of this woman over Isaac Pierce was
never broken during the twenty years she lived with him. Once
having secured her control over him he was submissive and obe



ARGUMVINTT.                      45
dient ever after. She was the only person who ever ruled him.
Sometimes he chafed a little under his chains, and complained to
his friends, but the testimony no where shows an instance where
he confronted her or resisted her authority.
Gentlemen, this question must not be misunderstood. Influence in its very nature is intangible-it is not to be proven and
demonstated like a physical fact. It is a pschycological fact, and
must be proved after its order. A look, a word, a gesture —these
may be its signs and indicate its presence without the power to
prove' direct or flagrant acts, or words of command. Undue influence of one person over another is the domination of the will of
the one over that of the other, and this condition may exist and
continue without noise or friction-a steady, silent but nevertheless powerful force.
So I say that this case is not to be decided by the number and
strength of the separate instances of the exercise of undue influence which we have proved. The counsel ridicule and make light
of these. But, gentlemen, I put the case upon a stronger basis
than these instances-I rest it upon the general fact of the peculiar, yea, the guilty relations.of these parties at the begining;
upon the mastery which this woman then gained. over Isaac
Pierce through infatuation  and through  passion;  upon the
proved continuance of that power so acquired, aided and constantly made more easy and secure by the continued decline of
the man in bodily and mental strength, thus weakening his will
and making it all the time less able to resist.
INSTANCES OFr UNDUE INFLUENCE.
But in saying this, gentlemen; in taking this strong general
ground  upon this question, I do not, by any means, mean
to admit that we have not proved instances of actual and tangible influence on the part of this woman. As you will readily see,
such facts must always be difficult to pro'e, hidden and concealed, as they ordinarily are, by domestic retirement and privacy.
In the case here we cannot call upon this woman and her children-the later family of Pierce-to prove them, and so we are
compelled to rely upon testimony from the outside. But with all
these difficulties in the way, see what we have proved, tending




ARGUMENT.
to show the great influence which this woman, Emeline, had over
Isaac Pierce. I recapitulate only the vital substance of what the
witnesses say.
lst. —HTer Acts (aud Elxp)ressions. Polly Clark tells you that
she'heard Emeline forbid Pierce going to Battle Creek when he
wanted to, and he minded her and did not go.
Loren Pierce says she overawed his father and prevented him
giving the deed to witness which he had promised.
Esquire Gutches testifies that the night before they were to
start for California, the first time, she refused to stir a step until
Pierce should settle with James Milliman-and she carried her
point.
Wm. Webster says that Emeline broke upka trade which he
had made with Pierce for a horse, would not let hin have the
horse and ordered him off the place.
Thomas Eldred heard her say to Pierce, "You won't get rid of
mne as you did of Aunt Katie. I will stick to you until you are
as dead and cold as a wedge."
John Radford tells you that when the new house was built she
wanted the four lighted windows and Pierce the twelve lighted.
He got the latter kind, but she:made him take them back and
get the other.
Capt. Barney Vosburg, a prominent witness for proponents, tells
you that when Pierce was away from home, Emeline was invariably with him.
2nc. —lIts  (Codcluct ancd(  Expressionis. Henry  Troutwine
swears that Pierce complained to him about Emeline interfering
with his business-said she wanted to control his business and
make him do things he did not want to do.
Elias Wright testifies that Pierce told him he could not let him
have a piece of land to sow to wheat, because it would make disturbance in the family -that he did not dare to do it.
Fredrick Stellay says that Pierce complained to him  about
Emeline. Said he might as well live in hell as with her; she would
not let him do as he wanted to. He once complained that she
would not let him bet at a horse race! Gentlemen, isn't that
carrying dictation a good ways?




Ax1G-.MENT.                      47
Levi Taylor says she interfered when Pierce was settling with
Billington, and at another time refused to let him go to Battle
Creek to pay a debt.
James Shaver swears that when Emeline wanted some mloney
for a sewing machine agent, Pierce went into the house with
her and he came out, saying he might as well live in hell as not tolet her have what money she wanted. At another time Pierce
complained that his wife had forbid every place in town selling
him liquor, andlthat he could not get a drop. Gentlemen, what a
commentary is that upon this man's degradation and the complete
helplessness of his situation in this woman's hands! He could be
1no longer his own,laster after that.
John Christol testifies that Pierce told him he had a hell on earth,
and had to make things to suit his wife.
Win. Webster, says that on the morning of the 29th of July,
1871, Pierce told him that he was going to make a will to see if
it would not satisfy his wife.
And finally, Caleb Sweetland, jr., one of the proponents own witnesses, and an intimate acquaintance of Emeline and a friend of
her family, tells you that Pierce used to say that "he could do
nothing without mother."
THIS INFLUENCE EXERTED TO OBTAIN THE WILL.
Now, gentlemen, I think that you will agree with me that here
is a very considerable mass of testimony tending to show the
possession of a strong and powerful influence by this woman over
this man. The question naturally arises now: Did she exert this
influence upon him in order to obtain this will?
In the first place, I ask you, gentlemen, what would be natural
and probable in such a case?  Consider her situation and that of
her children by Pierce. Consider the grave legal questions and
doubts which might arise in regard to her true relations to him
and to his property; to the legality of her marriage; to the legitinmacy of her children. Under such circumstances what would be
natural for her to do?  Would she not desire, above all other
things, that Pierce should make his will and thus settle these grave
questions and doubts forever, and confine the property to her and




48                      ARGUMtE-NT.
her children? Remember the other wife was still living and her
children, these contestants, were all about her.
Why, gentlemen, human nature itself answer these questions.
This woman could not have been true to her own interest and to
the interests of her children if she had not exerted her uttermost
power and influence to obtain a will such as she needed for her
protection. Do you believe her when she swears that she never
spoke to Pierce in her life about a will, and did not even know
what he was coming to Kalamazoo for when the will was made?
Gentlemen, on this subject, it is a most significant fact that this'
will is made in the interest of this woman and her children, and
that, too, in the very face of all these declarations and expressions
by Isaac Pierce of a contrary intention. What do you suppose
induced him thus to forget and deny his own words, to forget his
duty as a man and a father, and to disinherit his own blood?
What power drove from his mind the remembrance of these more
than orphaned children of his unfortunate daughter, Mrs. Parish?
Ah, gentlemen this is not such a will as he told Dr. Babcock, on
what he thought was his death bed, he wanted to make.
"TO KEEP PEACE IN THE FA3MILY."
No, gentlemen, this will was wrung from Isaac Pierce in his
old age, in his weakness, in his sickness, in his intoxication, by the
ceaseless and persistent importunity and authority of this woman.
Aagainst her oath, denying all this, saying she never spoke a
word to him on the subject, I put the oft' repeated declarations
of Isaac Pierce himself; I call him from the grave to confront
and impeach her. You will believe him when he tells you that
this will was not his, but hers; that it was made to please her and
get rid of her ceaseless importunity-"to keep peace in the
family."
How many times did this old man use that expression, as he
complained in the bitterness and sorrow of his heart of his doinestic troubles. Besides the many other things which he had to
do "to' keep peace in the family" was the making of this very
will?  You have seen how for this purpose of keeping peace, as
he himself said, he wanted his son Loren to pay him the thousand
dollars for the land, telling him he would pay it back to him; how,




ARGUMENT.                      49
according to the testimony of the venerable Moses Hodgman, he
exacted the mortgage from Milliman and his daughter, privately
assuring them that they would never need to pay it; how he took
the note from his other son-in-law, Clark, telling him it did not
need to be stamped as he only wished it to satisfy his wife. In
all these instances he used this same expression "to keep peace in
the family." But more than all this, he told John Christol, in
May, 1871, that he had got to make a will to suit his wife —"to
keep peace in the family." He told Ephraim Bonner in the month
following, that he was going to make a will to suit Mrs. Pierce
and "to keep peace in the family."  And finally, on the evening
of that very 29th day of July, when returning from Kalamazoo,
he told George Whiting at Galesburg, that he had been to town
doing some business "to keep peace in the family-" that he had
"signed the death warrant of his first wife and children."  How
significant and impressive is such testimony as this!
Again I ask you, gentlemen, can you doubt that it was the influence of this woman, her importunity, her demands, her authority
and control which induced and coerced this weak and worn out
old man to make this will? She was twenty years younger than
he; in the full vigor of her prime —a keen, artful, self-poised and
calculating woman, as her whole appearance on this trial abundantly shows. She was just the woman to hold with a steady and
iron grasp the power which, long before, she had acquired over
this man.
NO RATIFICATION OF THE WILL.
Need I say to you, gentlemen, that this will once made under
these circumstances could never be ratified by Isaac Pierce. I
know the counsel on the other side have made this point and they
will ask the court to charge you that you may find a ratification
of this will by Pierce, no matter under what circumstances it was
made.
Now I take issue with the gentlemen, most decidedly, on this
question, and I say in the first place, that as a matter of law there
could be no such thing as a ratification in this case. And for the
simple reason that if this paper was signed by Isaac Pierce when
not in his right mind, or when intoxicated, or when under the in



50                       ARGUMENT.
fluence of another, then it was not his act in the law, it was not
his will, but was void and of no effect whatever.  It is void, in
such case, because there is no consenting mind or will. Certainly,
I must be right in saying that if this man signed the paper when
his reason was dethroned, or when his mental faculties were
drowned in liquor, and when he had no such sound mind and memory
as the law requires, that then his act was void, and being void,
that the law, and reason, and common-sense all would unite that he
could not afterward, by anything he might say, give any effect to
that which was wholly without effect and worthless in the beginning. The law is always founded upon reason and common-sense.
A man may ratify an act which he does while under some legal
disability; as for instance, a contract made before he was twentyone years of age; but he can never ratify that which he never did
in other words, in all cases of what the law calls ratification, it
is always supposed that the act was an intelligent and conscious
one and that the disability was only from the outside. So I say
that here there is no question of ratification at all. It is a misnomer and an anomaly to say that there can be any such thing as
the ratification of a void will.
But if it be urged that Pierce could ratify the will if it was
simply made while under undue influence, then to this, in the
second place, I reply that as a matter of fact the testimony shows
that the influence of this women was a continuing influence; that
it remained and was never broken while this man lived. So the
answer is complete and as broad as the proposition. For if the
influence was so great as to be undue in law at the tiine when the
will was made, then before he could ratify -the act of making it
he must be shown to have escaped or recovered from this influence and to be in a situation where he could speak his own mind
and exercise his own free will. When, I ask you, is this time
proved to have been?
But gentlemen, the court will tell you that there can be no such
thing as a ratification of this will; that it must stand or fall upon
the man's condition at the time it was made, and that nothing he
could afterwards say or do would breathe the breath of life into
this paper, if at this time Isaac Pierce was not in the possession




ARGUMEXT.                       51
of a sound mind and memory, or was unable to exercise his own
free will. Something cannot be made out of nothing; nor can so
solemn and important a paper as a man's last will and testament,
which the lawv requires to be in writing, and duly and formally
declared, attested, signed and sealed, be revived from legal disability or death by a mere informal or casual verbal acknowledgement, made in reckless, blasphemous or drunken speech.
THE WILL UINNATURAL AND UNJUST.
Gentlemen, there is still left one great test or principle to apply to this will in order to see whether it be the solemn and deliberate act of the testator-and that is the test of its humanity and
its justice. I know a man has a right under the law to make an
unjust will, but I know too, that when the question is whether he
has made a will, and that question be at all in doubt, you may
look into the provisions of the instrument itself to see whether they
be contrary to natural justice, so that it may be determined
whether the man would be likely to make such a disposition of his
property. A will that is inhuman and unnatural is at the same
time unreasonable, irrational and improbable.
I have therefore, gentlemen, the right to urge this consideration upon you and to ask you to look to this question of justice.
Need I take one moment to show that this will is grossly unjust?
Here are these children by the first wife, this man's first children,
who helped him to accumulate this property, practically disinherited, their mother turned out of doors, while this woman
Emeline, the tempter and destroyer of this home, and her children,
who have never earned or added anything to the estate, are given
everything. Why should Isaac Pierce thus forget these older
children? They had worked hard for him; they were poor and
needed assistance as he well knew, and he had no feeling against
them. Why should he cut them off in their poverty?
Why, gentlemen, all this evidence shows that these constestants
had been most generous and forbearing in their conduct towards
their father. They had always been respectful to him-even when
his life had been such as not to command respect from the world;
they had been kind and attentive to him when suffering from accidents or sickness; and finally they exercised a degree of for



52                     AARGUMENT.
bearance when their mother was sent away which seems, at first
view, almost shocking to our human sympathies. The counsel
has dwelt -upon the fact that some of these contestants assisted
their father in procuring the Indiana divorce from their mother.
They did this, no doubt, thinking it was better than the open
shame and danger of his living in adultery with this woman in
the midst of a community excited and threatening a prosecution;
but notwithstanding this plain and perhaps sufficient motive which I
can plead in their excuse, the fact remains that they rendered a
much needed service to their father.
Why should Isaac Pierce forget all this when he came to make
his will?  And there was his poor, unfortunate daughter in the
Asylum, and her helpless and more than orphaned children whom
he loved and whom he told Dr. Babcock he intended to provide
for.  Why  should he forget them?' Ah! gentlemen, these
questions cannot be answered satisfactorily on any ordinary principles of human nature or natural affection. He could not have
forgotten these claims upon his bounty and his gratitude if he
had been in his right mind or in the free exercise of his will.
0! it needed all the audacity of the counsel to say that this
will was just. Gentlemen, the argument is an insult alike to your
reason and your humanity. If this be a just will, then where can
one be found which is unjust?  If this be a humane and a natural
will, then where can be found a will which is inhuman and
unatural?  Look, gentlemen, at these opposing parties before you.
Here on the one side are these contestants, the first children of
Isaac Pierce-the poorly clad and hard working boys and girls of
that early, desolate home —now past middle life, some of them verging toward old age-browned and bent by toil, in rusty and homely
garb, still hard working and poor; cheated and kept out of their
just inheritance, which now they so much need, by this relentless
and grasping woman who brought calamity and sorrow into their
father's household. There, on the other side, sits the author of all
this trouble, surrounded by her daughters, the later children of
Isaac Pierce, dressed in all modern extravagance and finery-gay,
frivolous, useless, modern young women, reared in luxury and ed



ARGUMrENT.                      53
ucated at boarding schools. Tell me, which of these twain have
earned the right to enjoy this property?
CONCLUSION.
Gentlemen, this man violated the physical and the moral law
alike; and he reaped the terrible penalty. For that great wrong
to the wife of his youth his remorse was keen and lasting. It
breaks out here and there, frequently, through the testimony.
How touching and overwhelming was that incident related by
Smith Lawrence, when Pierce passed his wronged and injured
wife on the highway as the sun was setting, and gazing after her
exclaimed, as the tears came to his eyes: "I would give all that I am
worth —I would give the whole town of Climax if I owned it, if I
had lived with that woman!"  There was conscience-there were
the scourges of memory at work. At last, bent and broken under
the heavy load of moral guilt, of violated physical law and domestic trouble, with mind impaired and shattered, and confused by
drink, under the powerful influence of another, he put his unsteady
hand to a will which outrages every sentiment of human affection
and controvenes every principle of natural justice.
Gentlemen, it is your solemn prerogative now to correct and repair this terrible work. You must set aside this wretched mockery
of a will. Let this man's'property descend to all his children-to
the deserving and the undeserving alike. These contestants will
then only share equally with the children of this usurping woman,
and she herself will remain the dead man's widow in the law, to
the exclusion of that early, lawful wife, who still lives to suffer
from man's injustice. What more ought these proponents to ask
or expect?
Gentlemen, I beg of you to pause and reflect before you render
a verdict sustaining this will. You have it now in your power to
do a great and supreme act of justice-an act noble and God-like,
and worthy of your sympathies as men and your oaths as jurors.
It is the glory of a jury to be able to execute some portion of
that justice which belongs supremely to God,-to vindicate the
cause of the weak and oppressed, and to blast and shatter the
power of the oppressor. In the name, then, of common justice
and humanity, I appeal to you for a verdict for these contestants.




54                     ARGUIENT.
Let no pre-conceived opinions, no prejudice, no obstinacy in your
jury-room, no specious pleas of any kind, keep you from this
high duty. For in doing this you will be true to your oaths, true
to the law, true to what this dead man would say, could he now
speak to you from the grave, and true to the eternal principles of
justice and right.