The Portland daily press., 1897-11-05


Case is Complicated by Outside Testi
mony.
A considerable portion of Judge White
houses time in the Supreme Court Thurs
day, was occupied with the peculiar case
of John H. Russell ct ais, in equity, VS..
Lemuel 7. Davis, ct ais. All the parties
in the complaint are John Il. Russell,
Geo. f. Russell and Sarah T. Coyle of
Portland The defendants are Lemuel
L. Davis of Portsmouth, N. H., Charles
D. Merrill of Boston, and Henry Merrill
and Frances Merrill of Portland, and
j ohm f. Proctor of Deering.
The source of the suit is found in the
will of the late Mrs. Submit C. Russell
of Portland, who died February II, 1896.
Of this will John H. Russell. who was
her husband was made executor. Mrs.
Russell had house on India street, al
legged to worth about $4,000, and $3.50 in
personal property. She il alleged to have
owed her husband s son, Geo. f. Russell,
$1,000 on note, which amounted to
$1140.
Mrs. Russell, by her will, gave to her
husband life interest in all her property
After his death the property was to go
to her son by former marriage, Lemuel
L. Davis, to her granddaughter, Sarah
f. Coyle, and her husbands son. Geo. f.
Russell, in such sums as her husband
might think just and right. She provided
that $40 should go to William W. Davis
On March "a, 1895, John 81. Russell
proceeded, under the power conveyed by
the will, to decide how the property
should be divided after he should get
through with it. He decided that Lem
uel T. Davis, should have $500, Sarah f.
Coyle $1,000 and George F. Russell $1,000,
including in this sum whatever Mrs.
Russell was owing to said Geo. f. Rus
sell. This division was duly recorded in
the probate office.
The next chapter is the allegation that
Lemuel T. Davis and Charles D. Merrill
tcontrived to defraudn the compliments,
continued by misrepresentation to get
from John II. Russell, alleged to be of
unsound mind, q note for Sl5C0, dated
March II, 1896. with interest at per
cent, secured by mortgage on the house
in which the said John II. Russell had a
life interest. LII consideration for this
note and mortgage they are alleged to
| have given to him q quit claim deed to
all their title in the house.
| The compliments allege that as soon
as they learned of the execution of this
L 1nrtC fhau WV nd
that both the note and mortgage had
been put into the hands of John f. Proc
ter Of Deering, real estate broker in Deer
| ing, to be sold. The complainants at
| once notified Mr.. Proctor that the mort
gage and note were without consideration,
and therefore fraudulent ana void, and
warned him against selling them.
The next development is represented
as follows: That John A. Russell on
learning and realizing the true nature of
the transaction, asked of Lemuel T.
Davis and Charles D. Merrill revision
of the transaction, and rendered to them
deeds of release to all that he had ac-
quired by their quit claim deed to him.
But it is alleged that Davis and Merrill
have neglected or refused to give up the
note and mortgage, and the compliments
pray that the court will order them to
give up the note and mortgage, and en-
join John F. Proctor from selling the
same.
THE OTHER SIDE
of the case is given in the reply Of Lem
uel T. Davis. In this reply it is admitted
that Mrs. Russell left the India treet
house. But there is denial Of the claims
that the property is worth $1,000; that her
personal estate did not exceed $780, or
that she was indebted to Geo. F. Russell
in the amount of the note for $1,000. The
defendant also Denies that Submit G.
Russell, by her will, gave to her husband
q life interest in the property. or that to
the husband was given the right to de-
termine how the property should be ap-
portioned after. his death. The defendant
also denies that John II. Russell ever
made the order of apportionment as
claimed
MIR. Davis also denies that either he or
Mr.. Merrill ever conspired to deprive any
of the compliments of their just rights;
or that John FL. Russell was ever in a
weak state of mind such as to incapacitate
him from understanding the nature of
his acts, or that they used any undue or
improper influence to procure from him
the note and mortgage. They also deny
the allegation that the note and mortgage
were placed in the hands of john f.
Proctor for sale; that John II. Russell
has ever demanded recision of the note
or mortgage or rendered them any release
Of any kind.
Mr. Proctor in his reply, also denies
that the note and mortgage have been
putssinto his hands.
The Merrill children of Deering
through their guardian, Carroll W. Nor
rill, in their answer, say that they are
grandchildren of Submit c. Russell, being
children of deceased daughter and had
the will not been allowed they would have
been entitled to some of the estate But