By Advice of Counsel Part 25

It was one of the unwritten laws of the office of Tutt & Tutt that Mr.

Tutt was never to be bothered about the details of a probate matter, and it is more than doubtful whether, even if he had tried, he could have correctly made out the inventory of an estate for filing in the Surrogate's Court. For be it known that, while the senior member of the firm was long on the philosophy of the law and the subtleties of "restraints on alienation," "powers," "perpetuities" and the mysteries of "the next eventual estate," he was frankly short on the patience to add and subtract. So while Mr. Tutt drew their clients' wills, it was Tutt who attempted to probate and execute them. Then, if by any chance, there was any trouble or some ungrateful relative thought he hadn't got enough, it was Mr. Tutt who reluctantly tossed away his stogy, strolled over to court and defended the will which he had drawn,--usually with success.

So it was the lesser Tutt who wrung the hand of Payson Clifford and gave him the leathern armchair by the window.

"And now about the will!" chirped Tutt, as after a labored encomium upon the virtues of Payson, Senior, deceased, he took the liberty of lighting a cigarette before he commenced to read the instrument which lay in a brown envelope upon the desk before him. "And now about the will! I suppose you are already aware that your father has made you his executor and, after a few minor legacies, the residuary legatee of his entire estate?"

Payson shook his head mutely. He felt it more becoming to pretend to be ignorant of these things under the circ.u.mstances.

"Yes," continued Tutt cheerfully, taking up the envelope, "Mr. Tutt drew the will--nearly fifteen years ago--and your father never thought necessary to change it. It's lain right there in our 'Will Box' without being disturbed more than once,--and that was seven or eight years ago when he came in one day and asked to be allowed to look at it,--I think he put an envelope containing a letter in with it. I found one there the other day."

Payson languidly took the will in his hand.

"How large an estate did he leave?" he inquired.

"As near as I can figure out about seventy thousand dollars," answered Tutt. "But the transfer tax will not be heavy, and the legacies do not aggregate more than ten thousand."

The instrument was a short one,--drawn with all Mr. Tutt's ability for compression--and filling only a single sheet. Payson's father had bequeathed seventy-six hundred dollars to his three cousins and their children, and everything else he had left to his son. Payson rapidly computed that after settling the bills against the estate, including that of Tutt & Tutt, he would probably get at least sixty thousand out of it. At the current rate he would continue to be quite comfortable,--more so in fact than heretofore. Still, it was less than he had expected. Perhaps his father had had expensive habits.

"Here's the letter," went on Tutt, handing it to Payson who took out his pen-knife to open it the more neatly. "Probably a suggestion as to the disposal of personal effects--remembrances or something of the sort.

It's often done."

The envelope was a cheap one, ornamented in the upper left hand corner with a wood cut showing a stout G.o.ddess in a night dress, evidently meant for Proserpina--pouring a Niagara of grain out of a cornucopia of plenty over a farmland stacked high with apples, corn, and pumpkins, and flooded by the beams of a rising sun with a real face. Beneath were the words:

"If not delivered in five days return to

Clifford, Cobb & Weng, Grain Dealers and Produce 597 Water Street, N.Y. City, N.Y."

Even as his eye fell upon it Payson was conscious of its coa.r.s.e vulgarity. And "Weng"! Whoever heard of such a name? He certainly had not,--hadn't even known that his father had a partner with such an absurd cognomen! "--& Weng!" There was something terribly plebeian about it. As well as about the obvious desire for symmetry which had led to the addition of that superfluous "N.Y." below the entirely adequate "N.Y. City." But, of course, he'd be glad to do anything his father requested in a letter.

He forced the edge of the blade through the tough fiber of the envelope, drew forth the enclosed sheet and unfolded it. In the middle of the top was a replica of the wood cut upon the outside, only minus the "If not delivered in five days return to." Then Payson read in his father's customary bold scrawl the simple inscription, doomed to haunt him sleeping and waking for many moons:--

"In case of my sudden death I wish my executor to give twenty-five thousand dollars to my very dear friend Sadie Burch, of Hoboken, N.J.

"PAYSON CLIFFORD."

For a brief--very brief--moment, a mist gathered over the letter in the son's hand. "My dear friend Sadie Burch!" He choked back the exclamation of surprise that rose unconsciously to his lips and endeavored to suppress any facial evidence of his inner feelings. "Twenty-five thousand!" Then he held out the letter more or less casually to Tutt.

"Wee-e-ll!" whistled the lawyer softly, with a quick glance from under his eyebrows.

"Oh, it isn't the money!" remarked Payson in a sickly tone--although of course he was lying. It _was_ the money.

The idea of surrendering nearly half his father's estate to a stranger staggered him; yet to his eternal credit, in that first instant of bewildered agony no thought of disregarding his father's wishes entered his mind. It was a hard wallop, but he'd got to stand it.

"Oh, that's nothing!" remarked Tutt. "It's not binding. You don't need to pay any attention to it."

"Do you really mean that that paper hasn't any legal effect?" exclaimed the boy with such a reaction of relief that for the moment the ethical aspect of the case was entirely obscured by the legal.

"None whatever!" returned Tutt definitely.

"But it's part of the will!" protested Payson. "It's in my father's own handwriting."

"That doesn't make any difference," declared the lawyer. "Not being witnessed in the manner required by law it's not of the slightest significance."

"Not even if it is put right in with the will?"

"Not a particle."

"But I've often heard of letters being put with wills."

"No doubt. But I'll wager you never heard of any one of them being probated."

Payson's legal experience in fact did not reach to this technical point.

"Look here!" he returned obstinately. "I'll be hanged if I understand.

You say this paper has no legal value and yet it is in my father's own hand and practically attached to his will. Now, apart from any--er--moral question involved, just why isn't this letter binding on me?"

Tutt smiled leniently.

"Have a cigarette?" he asked, and when Payson took one, he added sympathetically as he held a match for him, "Your att.i.tude, my dear sir, does you credit. It is wholly right and natural that you should instinctively desire to uphold that which on its face appears to be a wish of your father. But all the same that letter isn't worth the paper it's written on--as matter of law."

"But why not?" demanded Payson. "What better evidence could the courts desire of the wishes of a testator than such a letter?"

"The reason is simple enough!" replied Tutt, settling himself in a comfortable position. "In the eye of the law no property is ever without an owner. It is always owned by somebody, although the ownership may be in dispute. When a man dies his real property instantly pa.s.ses to his heirs and his personal property descends in accordance to the local statute of distributions or, if there isn't any, to his next of kin; but if he leaves a will, to the extent to which it is valid, it diverts the property from its natural legal destination. Thus, in effect, the real purpose of a will is to prevent the laws operating on one's estate after death. If your father had died intestate, you would have instantly become, in contemplation of law, the owner of all his property. His will--his legal will--deprives you of a small part of it for the benefit of others. But the law is exceedingly careful about recognizing such an intention of a testator to prevent the operation of the statutes and requires him to demonstrate the sincerity and fixity of that intention by going through various established formalities, such as putting his intention in due form in a written instrument which he must sign and declare to be his last will before a certain number of competent witnesses whom he requests to sign as such and who actually do sign as such in his presence and in the presence of each other. Your father obviously did none of these things when he placed this letter with his will."

"But isn't a letter ever enough--under any circ.u.mstances?" inquired Payson.

"Well," said Tutt. "It is true that under certain exceptional circ.u.mstances a man may make what is known as a nuncupative will."

"What is a--a--nuncupative will?" asked his client.

"Technically it is an oral will, operating on personality only, made in extremis--that is, actually in fear of death--and under our statutes limited to soldiers in active military service or to mariners at sea.

Under the old common law it was just as effective to pa.s.s personal estate as a written instrument."

"But father wasn't either a soldier or a sailor," commented Payson, "and anyhow a letter isn't an oral will; if it's anything at all, it's a written one, isn't it?"

"That is the att.i.tude the law takes," nodded Tutt. "Of course, one could argue that it made no difference whether a man uttered his wishes orally in the presence of witnesses or reduced them to writing and signed them, but the law is very technical in such matters and it has been held that a will reduced to writing and signed by the testator, or a memorandum of instructions for making a will, cannot be treated as a nuncupative will; nor is a written will, drawn up by an attorney, but not signed, owing to the sickness of the testator to be treated as a nuncupative will; but upon requisite proof--in a proper case--a paper, not perfected as a written will, may be established as a nuncupative will when its completion is prevented by act of G.o.d, or any other cause than an intention to abandon or postpone its consummation. The presumption of the law is against validity of a testamentary paper not completed. There must be in the testator the _animus testandi_, which is sometimes presumed from circ.u.mstances in such cases and in such places as nuncupative wills are recognized. Now, your father being as you point out, neither a soldier nor a sailor, couldn't have made a nuncupative will under any circ.u.mstances, even if a letter would legally be treated as such a will instead of as an ineffectual attempt to make a written one--upon which point I confess myself ignorant. Therefore"--and he tossed away his cigarette b.u.t.t with an air of finality--"this letter bequeathing twenty-five thousand dollars to Sadie Burch--whoever and whatever she may be--is either an attempt to make a will or a codicil to a will in a way not recognized by the statute, or it is an attempt to add to, alter or vary a will already properly executed and witnessed by arbitrarily affixing to or placing within it an extraneous written paper."

"Well," commented Payson, "I understand what you've said about nun--nuncupative wills, all right,--that is, I think I do. But leaving them out of consideration I still don't see why this letter can't be regarded as _part_ of the original will."

"For the reason that when your father executed the original doc.u.ment he went through every form required by the statute for making a will. If he hadn't, it wouldn't have been a will at all. If this paper, which never was witnessed by a single person, could be treated as a supplement or addition to the will, there would have been no use requiring the original will to be witnessed, either."

"That seems logical," agreed Payson. "But isn't it often customary to incorporate other papers by referring to them in a will?"

"It is sometimes done, and usually results in nothing but litigation.

You see for yourself how absurd it would be to treat a paper drawn or executed after a will was made as part of it, for that would render the requirements of the statute nugatory."

"But suppose the letter was already in existence or was written at the same time as the will,--wouldn't that make a difference?" hesitated Payson.