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The Commoner.
NOVEMBER 20,:"i903.
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JUDGE CLEVELAND'S DECISION IN THE PHILO S. BENNETT WILL CASE
District of New Haven ss. Probate Court,
November 6, 1903. Estate of Philo S. Bennett,
late of New Haven, in said District, deceased.
Memorandum of Decision: This
is a contes't over an application to admit to pro
bate a paper purporting to bo the last will of
Philo S. Bennett of New Haven, in this district,
and to probate in connection therewith, and as a
part tnereof, a certain letter unattested by wit
nesses, but signed by the deceased, and, it is
claimed, referred to in said will.
The 12th clause of said will reads as follows:
"Twelfth I give and bequeath unto my wife,
Grace Imogene Bennett, the sum of fifty thousand
dollars ($50,000) in trust, however, for the pur
poses set forth in a sealed letter which will bo
found with said will."
The letter, which was found after Mr. Ben
nett's death in the vaults of the Merchants Safe
Deposit company of New York city, in the same
safe deposit box with the will, but enclosed in a
separate sealed envelope, reads as follows:
"Bennett, Sloan & Co., Importers and Job
bers, Teas, Coffcs and Apices, Canned Goods,
Flavoring Extracts, Hudson and Franklin Streets,
New York, May 22, 1900. My Dear Wife: In my
will, just executed, 1 have bequeathed to you
seventy-five thousand dollars ($75,000) and the
Bridgeport houses, and have in addition to this
made you the residuary legatee of a sum which
will amount to twenty-five thousand more, This
will give you a larger income than you can spend
while you live and will enable you to make boun
tiful provision for those- you deBire to remember
in your will. In my will you will find the fol
lowing provisions:
"I give and bequeath unto my wife, Grace
Imogene Bennett, the sum of fifty thousand dol
lars ($50,000) in trust, however, for the purposes
set forth in a sealed letter which will be found
with this will. It is my desire that the fifty thou
sand dollars conveyed to you in trust by this pro
vision shall be by you paid to William Jennings
Bryan of Lincoln. Nob., or to his heirs if I survive
him. I am earnestly devoted to the political prin
ciples which Mr Bryan advocates and believe the
welfare of the nation depends upon the triumph
of these principles. As I am not as able as he to
defend those principles witn topgue and pen, and
as his political work prevents the application of
his time and talents to money making, 1 consider
it a duty, as I find it a plcasuro, to make this
provision for his financial aid, so that he may be
more free to devote himself to his chosen field -of
labor If for any reason he is unwilling to re
ceive this sum for himself, It is my will that ho
shall distribute the said sum of fifty thousand
dollars according to his judgment, among educa
tional .and charitable institutions. I have sent a
duplicate of this letter to Mr. Bryan and it is
my desire that no one excepting you and Mr.
Bryan himself shall know of this letter and be
quest. For this reason I will place this letter In
a sealed envelope and direct that it shall bo
opened only by you and read by you alone. With
love and kisses. P. S. BENNETT."
The Indorsement on the envelope reads as
follows: "Mrs. P. S. Bennett. To be read only
by Mrs. Bennett and by her alone after my death.
P. S. Bennett."
No objection has been made to the probate of
the will either on the ground of mental incapac
ity or improper execution, but the widow, next of
kin, and resjduary legatees object to the probat
ing of the letter contained in the sealed envelope
and to the 12th section of the will referring to
such letter, on the ground of undue influence
claimed by them to have been exerted over the
testator by William J. Bryan, of Lincoln, Neb.,
who benefits by the provisions of said letter and
said 12th chapter of said will. They further ob
ject on the ground that this unattested letter can
not be incorporated into the will, even if no un
due influence was exerted in procuring it. No
evidence was offered by tne contestants except a
letter written by Mr. Bryan after tne will had
been filed in court. The proponents' evidence
consisted of the testimony of tne attesting wit
nesses, the testimony of Mr. Bryan and of ex
Lieutenant Governor James D. Dewell, and cer
tain letters written by Mr. Bennett.
The question of undue influence will bo first
considered.
It appears that while Mr. Bennett was doing
business in New York city, i.eing a member of the
firm of Bennett, Sloan & Company, he resided In
New Haven. Mr. Bennett's acquaintance with Mr.
Bryan began during the presidential campaign of
1890, Mr. Bryan being a candidate for president
of the United States and Mr. Bennett having been
nominated for presidential elector on the Bryan
ticket in Connecticut. The erlgin ana character
of that acquaintance is indicated by the follow
ing letter:
"New York, Oct. 30, 1896. Hon. William J.
Bryan, Lincoln, Neb. Dear Sir: The betting is
three to ono against you In this state at tho
present time; but, notwithstanding that, I am
impressed with a feeling that you will win, and
if you are defeated, 1 wiBh to make you a gift of
$3,000, and if you will accept the same, It will bo
a genuine pleasure to me to hand it to you any
time after the 10th of next March. ,
"You have made one of the most gallant
fights on record for a principle, against the com
bined money power of tho whole country, and, if
you are not successful now, you will bo, in my
opinion, four years later.
"The solid press of the east and all tho wealth
of the country have, ever since tho canvass op
ened, concealed the truth and deceived tho pcoplo
-regarding tho whole question. They have suc
ceeded in making 25 per cent of them believe that
if you are elected tho country will bo governed
by a lawless, disorganized mob. If you are elected
I trust that you will, as soon as you can, issue a
letter or make a speech, assuring them that tho
great body of the people are honest and can bo
trusted.
"This letter is intended only for yourself and
wife to ever sco. A feeling of gratitudo for what
you have done In this canvass for humanity, for
right and justice, prompts mo to write and mako
this offer.
"I am one of tho electors at large on tne sil
ver ticket in the state of Connecticut, and ac
companied yon from New York to New Haven,
and rode in the carriage with you and Mr. Ser
geant from the station to the hotel.
'"Hoping for your victory, and with kind re
gards, I am, sincerely yours,
-P. S. BENNETT."
The friendship thus begun continued up to the
time of Mr. Bennett's death. The evidence shows
that from tho date of this first letter Mr. Bryan
never visited New York without seeing Mr. Bon
nett who, except on a single occasion, always met
nlm at tho train. Tho correspondence continued
until Mr Bennett's last letter to Mr. Bryan, dated
July 24, 1903, just before starting west upon tho
trip enalng in his death.
Mr. Bennett invited Mr. Bryan and family on
two or threo occasions to spend the summer with
him in Maine. In a letter written in 1899 extend
ing such an invitation, Mr. Bennett writes: "Per
haps you can accept my invitation to come thiB
way in August, with your family, and take a vaca
tion upon the Maine mountains with Mrs. Ben
nett and myself." And ho then added that Mrs.
Bennett and he would meet the family at tho
station on their arrival in New York. None of
these invitations, however, were accepted. A final
indication of the high regard which Mr. Bennett
had from the first cherished for Mr. Bryan is
shown by his call, in tho summer of 1903, a few
days before his death, at Mr. Bryan's homo in
Lincoln. Neb.
So much for the preliminary facts. Now as to
the circumstances attending the drawing of tho
paper propounded as Mr. Bennett's will as related
by Mr. Bryan. rtrtv
After inquiry by letter in the spring of 1900,
whether Mr. Bryan would be nome at a certain
time Mr. Bennett journeyed from New York city
to Lincoln, Neb., a few uays before the execution
of the will in question in New York city, and in
formed Mr. Bryan that he desired to draw his
will. He took with him to Nebraska an old will
and various memoranda Indicating bow he desired
to dispose of his property. He conferred with Mr.
Bryan who then dictatod the will to Mrs. Bryan
who wrote it out on the typewriter. Mr. Bennett
asked Mr Bryan whether he would be willing to
act as executor. Mr. Bryan consented, and ac
cordingly he and Mr. Alfred F. Sloan of New
York city Mr. Bennett's partner in business wero
named in' the will as executors. Most -of the in
dividual bequests were copied from the earlier
will Tho amounts of the bequests to Mr. Bryan
and to Mrs. Bryan, in trust for educaUonal in
stltutionr were communicated to Mr Bryan by
Mr Bennett, and the general provisions as to
how these amounts should.be given, were matters
o? di ussion between them: the bequest for the
founding of the Bryan-Bennett library at Mr.
Brvan's birthplace, to which they were jointly
to ycontriS being the only bequest suggested
by r.BeCett proposed to give Mr .Bryan $50,
nan rlJrPct Mr. Bryan suggested that the pe
ouest be given in tbZway it was finally attempted
toe gifen by the 12th section of tho will re-
forring to tho sealed letter, and In connection wlta
the drafting of tho will a typewritten draft wm
made of the proposed letter to Mrs. Bennett to be
enclosed In a soak 4 envelope and filed with the
will, and of a letter to bo written by Mr. Bennett
to Mr. Bryan, enclosing a duplicate of tho con
tents of tho scaled envelope and indicating how
ho wished Mr. Bryan to divido tho $50,000 betweea
himself and family; the proposition being that,
upon Mr. Bennott's return to Now York, he should
execute his will and mall to Mr. Bryan a dupli
cate of the letter which ho was to placo In a
scaled onvclopo and deposit with tho will, and
that In connection with sending tho duplicate of
tho contents of tho scaled envelope ho was to
writo Mr. Bryan a letter copying tho form prq
pared by them in Nebraska.
This course was pursued. Mr. Bennett left Mr.
and Mrs. Bryan In Nebraska, and returned to Now
York where, after oxccutlng his will In his own
store among nls business associates, he depos
ited it together with a letter enclosed In a scaled
onvclopo, as arranged for in Nebraska, in a safety
deposit vault of his own selection.
Do theso facts warrant tho court in finding
that tho testator was unduly Influenced by Mr.
Bryan?
While tho general rulo Is that tho burden of
proof is upon thoso alleging undue lnfluonco, the
rule 1b otherwise when tho gift is to ono who
sustains tho relation of attorney to tho testator,
and draws the will under which ho takes '
benefit. But this is a mere presumption which
the law raises and which may bo rebutted by evi
dence. St. Leger's Appeal, 34 Conn., 434; Dalo'a
Appeal, 57 Conn., 127; Richmond's Appeal, 58
Conn., 22G; Livingston's Appeal, C3 Conn., G8.
The testimony of Mr. Dowell, who had known
him for a quarter of a century, shows that the
testator was a sharp, able business man, a man
of decided opinions from which ho was not eas
ily turned aside. But whatever presumption, If
any, might be raised by reason of Mr. Bryarfa
drafting tho will, has been, In the opinion of the
court, abundantly overcome by tho evidence. Mr.
Bryan testifies that tho idea of a bequest in hla
favor, bo far from being suggested by him or
Mrs. Bryan, was a complete surprise to both; a
statement in which tho court has entire confi
dence In view of Mr. Bryan's frankness on the
witness stand and his evident desiro to fully dis
close all his relations with tho testator and all
tho circumstances surrounding tho drafting of the
will. It must also bo remembered that the testa
tor had ample opportunity to change his will at
any time during tho last threo years of his life
and without tho .knowledge of Mr. Bryan.
Mr. Bennett did not In his will forget hla
helrs-at-law and mado amplo provision for the
support of his wife. Taking tho total amount of
tho specific legacies In connection with his esti
mate of tho residue as expressed In the scaled
letter, he evidently thought ho was giving his wife
$100,000 or more, absolutely, out of an estate
which ho apparently Uought would approximate
$300,000. The Bryans wero n tho only legatee
outside of the widow and his helrs-at-law, but the
testator, besides making liberal public and chariti
able bequests, mado generous provision for rela
tives who would have received nothing but for
tho will.
Measured by Mr. Bennett's devotion to Mr.
Bryan and to tho principles for which both had
contended, the bequest of $50,000 to tho Bryans,
to take effect after tne testator's death, does not
seem more unusual than tho gift of $3,000 offered
to Mr. Bryan while they were comparative stran
gers and actually paid during Mr. Bennett's life.
This court finds that neither the 12th clause
of the will, nor the letter therein referred to, waa
procured by unduo Influence.
Tho other question to bo considered is whe
ther the letter contained in the sealed envelope,
and referred to In the 12th clause of the will, waa
so incorporated by reference as to bo made a part
of the will. Much emphasis has been placed on
the obiter remarks of tho court In Phelps vs. Rob
bins. 49 Conn., 250, 271, seriously questioning
whether In this state papers referred to In a wilL
containing Instructions disposing of property, can
be Incorporated Into a will. Whatever our high
est court might decide, if the question was square
ly presented to it today. It Is not necessary to con
sider in order to pass on the questions before
this court Even though the law rn this state Is,
as It seems to be In most jurisdictions, that suck
a paper, under certain conditions, may be Incor
porated by reference, this letter Is objected to on
other grounds. Even If It be conceded that the
12th clause In this will refers to tho extraneona
(Continued on Page 4.)
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