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In support of the note is the evidence of contestant, his wife, Sarah J. Beal, and son, Adelbert. Contestant is 52, his wife, 50, and son, 25 years old. It is claimed by the contestant that he paid the note in full, with interest, April 1, 1895, at which time his son, who testified to that payment, was 12 years old.
Is the note, Exhibit 2, the offspring of honesty, or was it conceived in avarice, born of fraud, and nourished by perjury? It was made on Easter Sunday, notwithstanding the general belief among farmers that such notes are void. The contestant testified that he received from Sergant $1,750 in cash. It was not put in a bank, nor does it appear why it was borrowed. During Sergant's life no interest was paid. Sergant collected his interest when due. The inventory shows two mortgages on which there was no past-due interest at Sergant's death. Exhibit 2 is not mentioned in the inventory of the Sergant estate, yet it was then more than four years old. There is no claim that any other personal property was omitted from the inventory. The note was seven years old when contestant and others of his family say it was paid to his mother. William J. Beal, his wife Kittie, and Sergant, lived with Ann Maria Beal for many years, the said Sergant all his life. Still on the evidence at the time of Sergant's death none of these persons knew of the existence of Exhibit 2, unless possibly Sergant. There was no trouble in finding all of the Sergant securities, and other papers. Why then should this note have escaped the appraisers ? Sergant's object in giving the life use of all of his property to his friend Ann Maria Beal was to provide her with an income for her life. Why should he withhold from her, or mislay, Exhibit 2, and thereby deprive her of an annual income of $105, and at the same time so leave the two mortgages and the bank certificate of deposit as to be readily found ? If Exhibit 2 was found among Sergant's effects, what motive could Ann Maria Beal have in withholding it from the inventory, as she could only use the interest of the same? If she did withhold it, or knew of its existence, her affidavit to the inventory was willfully false, as was also her affidavit to her account, filed July 20, 1893, because on that date, on the evidence of the contestant, $120 interest had been paid to her on the Sergant note, April 1, 1892, and $105, April 1, 1893.
On June 15, 1892, two months and a half after she had received $120 interest on Exhibit 2, according to contestant's testimony, she verified the inventory, using these words:
"That the inventory of the goods, chattels, and credits of said decedent, by this deponent made, and to this deposition annexed, is in all respects just and true; that it is a true statement of all the personal property and effects of said deceased, which have come to the knowledge of this deponent," etc.
The following year, June 20, 1893, after on contestant's evidence she had been paid another year's interest of $105, she says in Schedule B of her account:
“There has been no other asset which has come to the hands of the executor since taking said inventory, except the sum of $168, accrued interest on said
In her verification of said account, the following language is used:
"The foregoing annexed account contains, according to the best of knowledge and belief, a full and true statement of all receipts and disbursements on account of the estate of said decedent, and also of all moneys and other property belonging to said estate, which have come to her hands, or which have been received by any other person by her order or authority, for her use, and she does not know of any error or omission in said account to the prejudice of any person interested in the estate of said deceased," etc.
If what Ann Maria Beal swore to as aforesaid was true, then what the contestant and his wife and son have testified to is partly false.
Did Charles M. Beal pay his mother, Ann Maria Beal, the face of Exhibit 2, with one year's interest on April 1, 1895, amounting to $1,855, when he knew that his mother was only entitled to the income of said note during life, and when he also knew that, if he withheld the payment of the principal until his mother's death, he, being one of the resi legatees under the Sergant will, would be entitled to letters of administration with the will annexed, and could then pay Exhibit 2 into said estate, and be sure to receive his share thereof?' He also knew that if he paid it to his mother, and she spent it, and died without leaving sufficient property to repay it, he would lose his share of it. He probably always knew his mother's financial condition. Ann Maria Beal at the time of her death held contestant's note for $1,000 dated March 31, 1892, which she bequeathed to him in her will. If the contestant succeeds in establishing Exhibit 2, he will have $1,000 out of his mother's estate, represented by Exhibit B, one-half of the Sergant estate, and, in addition thereto, one-half of the amount of Exhibit 2, which his mother's estate will be able to pay. As evidence of the good faith and honesty of the contestant, in his effort to surcharge the account of his mother's representatives in the Sergant estate, with the amount of said Exhibit 2, it is proper to consider the fact that M. Cornelia Utter, a sister of contestant, did not join in the contest, though she would be materially benefited under the provisions of the Sergant will should the contest succeed. This lady lives in Utica, was not sworn as a witness, and seemingly is not under the influence of either of her brothers, but knows them both well. Hence her position in regard to the contest, while it does not rise to the dignity of evidence, is still significant. After the death of Ann Maria Beal, May 30, 1907, the contestant applied for letters of administration with the will annexed in the Charles Sergant estate. Letters were issued to contestant and Mrs. Utter, his sister. They each filed separate bonds. If they had joined, one bond of $7,000 would have been sufficient, as the petition of contestant showed an estate of only $3,500. Charles M. Beal alone verified the petition, and it does not appear why Mrs. Utter gave a separate bond.
There is another circumstance which invites attention. The petition verified by contestant contained this provision:
“That the value of the estate of said decedent remaining unadministered will not exceed the sum and amount of $3,500.00.”
Said petition was filed June 5, 1907. The inventory in said estate filed in 1892 showed a gross personal estate of $3,902.66. July 20,
1893, an account was filed by contestant's mother in said estate, showing a balance in her hands for distribution of $3,249.93, so that the petition for letters of administration with the will annexed in the Sergant estate, verified by contestant, stated an amount in keeping with the facts shown by the papers on file. That the contestant knew all about the papers and their contents on file in the surrogate's office can be assumed from the following evidence given by him:
"I was over there (surrogate's office] two or three times before I filed my petition. We looked at the papers there on these occasions. I had not made my petition for letters of administration with the will annexed, before I saw the papers.”
When he verified his petition, did he have in mind the $1,750 paid into the Sergant estate? He knew that his mother's account on file showed $3,249.93 as per inventory, and was filed in 1893, upon notice to him and without objection. He knew that to said sum must be added $1,750, paid by him thereafter, making a total, in the Sergant estate, to be accounted for and which must come to his hands, as administrator with the will annexed, of $4,999.93.
For the purposes of showing where the truth lies, it may be profitable to analyze the contestant as a witness. Out of 91 questions asked him by his counsel he gave 87 positive answers, and out of 332 questions asked him on cross-examination he gave 126 evasive answers, many of which were, “I don't remember," "I can't say," "I don't recollect," and yet no reason appears why witness should not have been as clear, in regard to the matters inquired about on cross-examination, as those inquired about on direct examination. The contestant's testimony in regard to Exhibit 2 shows a very hazy and uncertain memory, and a mind so vacillating and contradictory that one is forced to inquire whether it is really traveling along an honest highway. He testified:
"The indorsements on Exhibit 2 were made at the several dates that each of them is dated. I couldn't say whether the several indorsements on the back of Exhibit 2 were made upon the day they bear date. The second indorsement might have been made at my house. I have a distinct recollection where it was made. It was at my mother's. I don't remember whether Sergant folded Exhibit 2. I will swear that I saw him fold it. I wrote all of the indorsements on the back of Exhibit 2 after the paper had been folded. I couldn't say whether the paper was folded at all when I wrote any of those indorsements. I don't know whether Exhibit 2 had been folded before I tore my name off it. When the paper came to me and before I tore the name from its bottom, it had on it these creases from folds."
When questioned as to where he got the $1,855 which he claimed he paid to his mother April 1, 1895, in full of Exhibit 2, he wrested the laurels from the brow of Ananias, in the following reckless manner:
"I got Townsend's check in 1895, before the 1st of April. Mr. Townsend gave me $1,000 at his office. I don't say whether it was cash or check. I will swear that in 1895 William Townsend turned over to me $1,000 in cash. In check or cash-I couldn't tell the amount of the cash or state the amount of the check. I did not take the $1,000 home in a lump. I do not know, it might have come a piece at a time. I took that money in a single lump home. That $1,000 that I took home in a lump was made up of money-bills. I start
bills from Townsend and Jones. I did not arrange to pay Jones and Townsend in any way.
gave them a .note. I had in my house on April 1, 1895, $1,000 that I got from the Nathaniel Kirkland estate. I paid the Jones and Townsend note when I got my $1,000 from the Kirkland estate. I got this money from Jones and Townsend to pay the Sergant note (Exhibit 2].”
The foregoing battle with truth seemed necessary to show where the money came from to pay Exhibit 2 as claimed. Jones & Townsend were contestant's attorneys in the Kirkland estate, and are both now living in Utica. They were not called as witnesses. Nor was the note given to Jones & Townsend by contestant produced, though it was requested, after contestant said he thought it was at his home. Contestant's wife accounts for the balance in these handy words:
“I saw him get the money and count it. He went to his mother's to pay the note. The money was kept in a sand bank in the cellar, in a teapot, and different places. I had part of it. The money was got in different ways. He baled hay, and had an auction sale of stock, and he got from the Kirkland estate $500.”
The auction was in 1894. The contestant swore he got $1,000 from the Kirkland estate. His wife says it was $500. The contestant's wife, Sarah J. Beal, was impeached by six neighbors, and more effectually impeached herself by the following testimony:
"I have lived in Bridgewater all my life; 50 years." On cross-examination she testified:
"Q. You lived for some time in Waterville with a man by the name of Cook ? (No answer.) By Mr. Thomas: How long did you live in Waterville? A. Five or six years. Q. Was it iive or six years that you lived with some one else? A. I don't remember. Q. You don't remember whether or not you lived at Waterville and passed as the wife of a man by the name of Cook? A. I don't remember that. Q. You won't say that you did, Mrs. Beal? A. I don't remember."
She said she was never married except to Mr. Beal. Such evidence staggers credulity. If she lived with a man in Waterville or went by the name of Cook before she married Mr. Beal, she still remembers it. To say "I don't remember" implies a former knowledge. The answer, “I don't remember," to such questions, is the perjurer's shelter. As the taste of the apple sat upon the tongue of Eve till she entered her tomb, so will the memory of a woman's first illicit conjunction with a man burrow in her brain till its habitation falls to dust.
There is another witness, Adelbert Beal, the son of the contestant, without whose evidence the contest must fail. He is 25 years old, and was only 12 years of age April 1, 1895. This witness was asked to give a conversation he had with his grandmother, Ann Maria Beal, when he was a mere child. He was equal to the demand. He said:
"I went with my father, who showed me a large roll of money, on April 1, 1895, to my grandmother's. It was in the morning. I left father at my grandmother's and went to school, and was recorded late that morning. I took dinner with grandmother that day, and at about a quarter to 1 in March or April she told me she had straightened all up with my father on the Charles Sergant note, and that things were square. Grandmother had showed me the note before. It was a piece of pad paper.”
There is no doubt but that Exhibit 2 is a leaf out of a book. It is yellow and ruled crosswise with blue lines and lengthwise with red
lines. It is about 1212 inches long and 514 inches wide, and, when produced in court, was folded so that it was 514 inches long and 144 inches wide. It was thus folded when Beal gave it to his wife April 1, 1895, who put it away and took care of it till the trial. The boy said he afterwards saw the note his grandmother showed him, which was on a piece of pad paper, in his father's possession. This witness on cross-examination, when pressed as to his connection with breaking into the Bridgewater depot and taking money, etc., on his counsel's suggestion, took refuge in the sheltering arms of his legal privilege, and said, "I remain silent." No explanation was made by him touching this matter. When a case rests solely upon the evidence of a witness who thus willfully closes the door to his general character, it would be ravishing a court's discretion to give credence to his evidence, in this case, because of his doubtful character and presumptive interest, born of his natural desire in his father's success.
The thousand dollar note, Exhibit B, was seemingly on a piece pad paper, and reads as follows:
“$1,000. Bridgewater, March 31/92. For value received I promise to pay Ann M. Beal One Thousand dollars with use at 5 per cent. Chas. M. Beal."
Exhibit B was drawn on a piece of paper with two-inch unruled margin at top, and balance ruled across the paper only. Exhibit B is 514 inches long and 41/2 inches wide. The writing is 21/2 inches long and 412 inches wide. Five indorsements in Ann Maria Beal's writing are on the back. They cover a space of 112 inches by 412 inches, and are as follows:
"Interest paid to April 1st. 93. 1894 Interest Paid. April 3rd, 95 one years interest Paid. Interest Paid to April 6th 1896. $5 five dollars paid July 12, 1901."
This evidence can be reconciled only upon the theory that the grandmother had in mind Exhibit B, and may have told the boy to tell his father that she wanted her interest on that note. In support of this is an interest indorsement on Exhibit B, dated April 3, 1895, and the boy's evidence that the note he saw was on a piece of pad paper. The indorsements on Exhibit B show that Ann Maria Beal could and did write as late as July 12, 1901. Mr. Watts, attorney, testified that she signed her affidavit to the inventory of the Sergant estate June 14, 1892, and July 20, 1893, wrote her name to her petition for an accounting twice, and to her account eight times. Why did she not sign the indorsements on Exhibit 2, if she ever received the money, particularly the last one, which purports to show a payment of $1,855 April 1, 1895? They say she drank tea and smoked freely, which made her nervous. It was a queer grade of tea and tobacco, and with freakish effects, which enabled her to indorse payments on Exhibit B from April, 1893, down to July 12, 1901, one of which was April 3, 1895, and wholly unfitted her to sign the memorandum of payment of $1,855 on Exhibit 2, April 1, 1895, only two days earlier.
Upon the entire case I am reluctantly led to the conclusion that the father, wife, and son, all interested, are engaged in a dishonest effort