The record-union., 1899-11-25


provide for her.
Mrs. Austin testified he wrote to let
plaintiff come and he would provide
we'll for her and help her in her art.
DR.. Austin impressed me as an up
right man who was trying to give his
best recollection of the contents of the
letter. But the letter was written in
1879 and he had not seen it since.
The doctors memory, owing to his ad-
vanced age and sickness, was very
defective and he frankly so admitted
Mrs. Austin's memory seemed to be
very good, but her statement of the
contents of the letter, above quoted,
left out one important element, viz:
that the provision for plaintiff was TO
be made at death of deceased.
Twenty years elapsed between the
date of this letter and the trial. The
feeble condition of DR.. Austin and his
weakness of memory are apparent and
admitted. Mrs. Austin until late in the
trial, did not remember any more of
the contents of the letter than 1 have
mentioned above.
For these and other reasons I would
not, unless they are corroborated, be
justified in finding upon their estimony
that the deceased, in the letter referred
TO, promised to provide for or pay
plaintiff at his death
Are they corroborated?
First-We have the undisputed fact
that plaintiff did in July, 1879, leave
Missouri and come to California and
live with deceased until his death
There must have been some motive i'm
pelling her SO to do. She was not
closely related to him; only a grand
niece. Her parents were respectable
people in comfortable circumstances;
mad given her a good education and
were in a position to further advance
her. She had at that time no personal
acquaintance with deceased, and knew
not what manner of man he was.
Second-We have the testimony of
great many witnesses to whom the
deceased said he had sent for the
plaintiff to come out here, and in sub
stance that he would provide we'll for
her at his death.
Taking all the evidence together. 7
feel justified in finding that the deceas-.
ed in 1879 entered into a contract with
plaintiff by which he agreed that if
she would come to California and live
with him and look after him, he would
amply provide for her at his death.
am not unmindful~ of the rule of
law invoked by counsel for the defend
ant and expressed by Mr.. Greenleaf in
the following language:
with respect to all verbal admis-
slons 1t may be observed that they
ought to be received with great eau
tlon- The evidence, consisting as it
does in the mere repetition of oral
statements, is subject to much imper-
lection and mistake, the party. either
being misinformed or not having clear
~ expressed his own meaning, or the
stiffness having misunderstood him"
II frequently happens also, that the
witness by unintentionally altering a
lew OF the expressions really used.
gives an effect to the statement com
pietely at variance with what the partv
did actually say
II the statements of the deceased had
been made to only one or two persons.
should feel bound to invoke the above
rule But, where they have been made
TO scores of people at different times
ana under different circumstances, their
Welgnt as evidence, is greatly aug
mented. And besides, in the present dis
cussion, the exact words used by the
deceased, which Greenleaf says might
be unintentionally altered, are not ma
terial.
TheSexpressions We're as varied a. the
witnesses: ''She will be a rich woman
when I die II will pay her we'll for
all her kindness" !" 'I sent for her to
come out here" ETC. What the exact
words used by the deceased in these
talks were. am not interested in
knowing. Whether the one or another,
the conclusion is reached that he con-
veyed the impression that she came at
his request, land that she was TO he
paid for her services and kindness to
him at his death.
What services We're performed?
The plaintiff came to California in
1879; was met at the depot by deceased
ana taken to his ranch in Yolo County.
near Sacramento. She attended an art
school in Sacramento for time; then
school of design in San Francisco for
four years. All the expenses of at
tending these schools were paid by the
deceased, except part of one year in
San francisco. She then opened a
studio in Sacramento and conducted it
until in the summer of 1892
During the time she was attending
the school of design she was at the
home of the deceased only during vaca-
ton. And while conducting the studio
at sacramento she was with deceased
only evenings, except when the state CT
his health required her to be with him
during the day.
In 1887 she made a visit to her old
home in Missouri and in 1893 she at
| tended the Worlds Fair and visited in
Missouri. The trip occupied several
months. The expenses of both trips
We're paid by deceased.
The deceased sold his ranch in YoIo
County in 1884 and moved into Sacra-
mento- While on the ranch they al
ways Kept a housekeeper After he
moved to Sacramento he never kept
house; the deceased and plaintiff
boarded. During his lifetime the de-
| ceased amply provided for all the wants
of plaintiff.
The deceased was a man of largo
business interests and to them he gave
MS time and personal attention. lie
was IN his office daily when not sick
or out OF town. His business caused
MN to make frequent trips to various
places in California Sometimes the
plaintiff accompanied him, but gener-
ally he went alone. The plaintiff never
had any housework to do. She Der
formed all those services for the de-
ceased that a loving daughter would
perform for an aged father. He was ,;n-
married, childless and rich. While he
was a self-reliant man, in the latter
years of his life his increasing infirmi-