By Advice of Counsel Part 26

"Not a bit! Not one bit!" chirped Tutt. "The law is settled that such a paper writing can be given effect only under certain very special conditions and only to a limited extent. Anyhow that question doesn't arise here."

"Why not?" queried the residuary legatee. "How do you know this letter wasn't written and placed inside the will when it was made?--And that my father supposed that of course it would be given effect?"

"In that case why shouldn't he have incorporated the legacy in the will?" countered Tutt sharply.

"He--er--may not have wished Mr. Tutt to know about it," murmured Payson, dropping his eyes.

"Oh,--hardly!" protested Tutt. "We can be morally certain that this letter was written and placed with the will that time your father came in here and asked to be allowed to see it, seven odd years ago. Mr. Tutt would have noticed it if your father had placed it with the will in the first instance and would have warned him that nothing of the sort could possibly be effective."

"But," insisted Payson, "a.s.suming for argument's sake that this letter was in fact written at the time the will was originally executed, what is the reason the law won't recognize it as a valid bequest?"

Tutt smiled and fumbled in an open box for another cigarette.

"My dear sir," he replied, "no paper could possibly be treated as part of a will--even if extant at the time the will was executed--unless distinctly referred to in the will itself. In a word, there must be a clear and unmistakable intention on the part of the testator to attempt to incorporate the extraneous paper by reference. Now, here, there is no reference to the paper in the will at all."

"That is true!" admitted Payson. "But--"

"But even if there were," went on Tutt, eagerly, "the law is settled in this state that where a testator--either through carelessness or a desire to economize s.p.a.ce or effort, has referred in his will to extraneous papers or memoranda, either as fixing the names of beneficiaries of particular devises or bequests, or as fixing the amount or the manner in which the amount of such devises or bequests is to be ascertained, such a paper must not contain any testamentary disposition of property. In a word the testator having willed something can _identify_ it by means of an extraneous paper if properly designated, but he cannot _will_ the thing away by an extraneous paper no matter how referred to. For example, if A wills to B 'all the stock covered by my agreement of May 1, with X' it merely describes and identifies the thing bequeathed,--and that is all right. The law will give effect to the identifying agreement, although it is separate from the will and unattested. But, if A's will read 'and I give such further bequests as appear in a paper filed herewith' and the paper contained a bequest to B of 'all the stock covered by my agreement of May 1, with X' it would be an attempted bequest outside of the will and so have no legal effect."

"Thanks," said Payson. "I understand. So in no event whatever could this letter have any legal effect?"

"Absolutely none whatever!--You're perfectly safe!" And Tutt leaned back with a comfortable smile.

But Payson did not smile in return. Neither was he comfortable. Be it said for him that, however many kinds of a fool he may have been, while momentarily relieved at knowing that he had no legal obligation to carry out his father's wishes so far as Sadie Burch was concerned, his conscience was by no means easy and he had not liked at all the tone in which the paunchy little lawyer had used the phrase "you're perfectly safe."

"What do you mean by 'perfectly safe'," he inquired rather coldly.

"Why, that Sadie Burch could never make you pay her the legacy--because it isn't a legal legacy. You can safely keep it. It's yours, legally and morally."

"Well, is it?" asked Payson slowly. "Morally, isn't it my duty to pay over the money, no matter who she is?"

Tutt, who had tilted backward in his swivel chair, brought both his feet to the floor with a bang.

"Of course it isn't!" he cried. "You'd be crazy to pay the slightest attention to any such vague and unexplained scrawl. Listen, young man!

In the first place you haven't any idea when your father wrote that paper--except that it was at least seven years ago. He may have changed his mind a dozen times since he wrote it. It may have been a mere pa.s.sing whim or fancy, done in a moment of weakness or emotion or temporary irrationality. Indeed, it may have been made under duress.

n.o.body but a lawyer who has the most intimate knowledge of his clients'

daily life and affairs has the remotest suspicion of--Oh, well, we won't go into that! But, the first proposition is that in no event is it possible for you to say that the request in that letter was the actual wish of your father at the time of his death. All you can say is that at some time or other it may have been his wish."

"I see!" agreed Payson. "Well, what other points are there?"

"Secondly," continued Tutt, "it must be presumed that if your father took the trouble to retain a lawyer to have his will properly drawn and executed he must have known first, that it was necessary to do so in order to have his wishes carried out, and second, that no wish not properly incorporated in the will itself could have any legal effect. In other words, inferentially, he knew that this paper had no force and therefore it must be a.s.sumed that if he made it that way he intended that it should have no legal effect and did not intend that it should be carried out. Get me?"

"Why, yes, I think I do. Your point is that if a man knows the law and does a thing so it has no legal effect he should be a.s.sumed to intend that it have no legal effect."

"Exactly," Tutt nodded with satisfaction. "The law is wise, based on generations of experience. It realizes the uncertainties, vagaries, and vacillations of the human mind--and the opportunities afforded to designing people to take advantage of the momentary weaknesses of others--and hence to prevent fraud and insure that only the actual final wishes of a man shall be carried out it requires that those wishes shall be expressed in a particular, definite and formal way--in writing, signed and published before witnesses."

"You certainly make it very clear!" a.s.sented Payson. "What do executors usually do under such circ.u.mstances?"

"If they have sense they leave matters alone and let the law take its course," answered Tutt with conviction. "I've known of more trouble--!

Several instances right here in this office. A widow found a paper with her husband's will expressing a wish that a certain amount of money should be given to a married woman living out in Duluth. There was nothing to indicate when the paper was written, although the will was executed only a month before he died. Apparently the deceased hadn't seen the lady in question for years. I told her to forget it, but nothing would suit her but that she should send the woman a money order for the full amount--ten thousand dollars. She kept it, all right! Well, the widow found out afterwards that her husband had written that paper thirty years before at a time when he was engaged to be married to that woman, that they had changed their minds and each had married happily and that the paper with some old love letters had, as usually happens, got mixed up with the will instead of having been destroyed as it should have been. You know, it's astonishing, the junk people keep in their safe deposit boxes! I'll bet that ninety-nine out of a hundred are half full of valueless and useless stuff, like old watches, grandpa's jet cuff b.u.t.tons, the letters Uncle William wrote from the Holy Land, outlawed fire insurance and correspondence that n.o.body will ever read,--everything always gets mixed up together,--and yet every paper a man leaves after his death is a possible source of confusion or trouble.

And one can't tell how or why a person at a particular time may come to express a wish in writing. It would be most dangerous to pay attention to it. Suppose it was _not_ in writing. Morally, a wish is just as binding if spoken as if incorporated in a letter. Would you waste any time on Sadie Burch if she came in here and told you that your father had expressed the desire that she should have twenty-five thousand dollars? Not much!"

"I don't suppose so!" admitted Payson.

"Another thing!" said Tutt. "Remember this, the law would not _permit_ you as executor of your father's will to pay over this money, if any other than yourself were the residuary legatee. You'd have no right to take twenty-five thousand dollars out of the estate and give it to Miss Burch at the expense of anybody else!"

"Then you say the law won't let me pay this money to Sadie Burch whether I am willing to or not?" asked Payson.

"Not as executor. As executor you're absolutely obliged to carry out the terms of the will and disregard anything else. You must preserve the estate intact and turn it over unimpaired to the residuary legatee!"

repeated Tutt.

"But I am the residuary legatee!" said Payson.

"As executor you've got to pay it over in full to yourself as residuary legatee!" repeated Tutt stubbornly, evading the issue.

"Well, where does that leave me?" asked his client.

"It gets you out of your difficulty, doesn't it?" asked Tutt. "Don't borrow trouble! Don't--if you'll pardon my saying so--be an idiot!"

There was silence for several minutes, finally broken by the lawyer who came back again to the charge with renewed vigor.

"Why, this sort of thing comes up all the time. Take this sort of a case, for instance. The law only lets a man will away a certain proportion of his property to charity--says it isn't right for him to do so, if he leaves a family. Now suppose your father had given all his property to charity, would you feel obliged to impoverish yourself for the benefit of a Home for Aged Mariners?"

"Really," replied the bewildered Payson. "I don't know. But anyway I'm satisfied you're quite right and I'm tremendously obliged. However," he added musingly, "I'd rather like to know who this Sadie Burch is!"

"If I were you, young man," advised the lawyer sagely, "I wouldn't try to find out!"

Mr. Payson Clifford left the offices of Tutt & Tutt more recalcitrant against fate and irritated with his family than when he had entered them. He had found himself much less comfortably provided for than he had expected, and the unpleasant impression created by the supposed paternal relatives at his father's funeral had been heightened by the letter regarding Sadie Burch. There was something even more offensively plebeian about them than that of the vulgar Weng. It would have been bad enough to have had to consider the propriety of paying over a large sum to a lady calling herself by an elegant or at least debonair name like Claire Desmond or Lillian Lamar,--but Sadie! And Burch! Ye G.o.ds! It was ign.o.ble, sordid. That was a fine discovery to make about one's father!

As he walked slowly up Fifth Avenue to his hotel it must be confessed that his reflections upon that father's memory were far from filial. He told himself that he'd always suspected something furtive about the old man, who must have been under most unusual and extraordinary obligations to a woman to whom he desired his son to turn over twenty-five thousand dollars. It was pretty nearly half of his entire fortune! Would cut down his income from around four thousand to nearly two thousand! The more he pondered upon the matter the more the lawyer's arguments seemed absolutely convincing. Lawyers knew more than other people about such things, anyway. You paid them for their advice, and he would doubtless have to pay Tutt for his upon this very subject, which, somehow, seemed to be rather a good reason for following it. No, he would dismiss Sadie Burch and the letter forever from his mind. Very likely she was dead anyway, whoever she was. Four thousand a year! Not a bad income for a bachelor!

And while our innocent young Launcelot trudging uptown hardened his heart against Sadie Burch, by chance that lady figured in a short but poignant conversation between Mr. Ephraim Tutt and Miss Minerva Wiggin on the threshold of the room from which he had just departed.

Miss Wiggin never trusted anybody but herself to lock up the offices, not even Mr. Tutt, and upon this particular evening she had made this an excuse to linger on after the others had gone home and waylay him. Such encounters were by no means infrequent and usually had a bearing upon the ethical aspect of some proposed course of legal procedure on the part of the firm.

Miss Minerva regarded Samuel Tutt as morally an abandoned and hopeless creature. Mr. Ephraim Tutt she loved with a devotion rare among a s.e.x with whom devotion is happily a common trait, but there was a maternal quality in her affection accounted for by the fact that although Mr.

Tutt was, to be sure, an old man in years, he had occasionally an elfin, Puck-like perversity which was singularly boyish, at which times she felt it obligatory for her own self-respect to call him to order.

Thus, whenever Tutt seemed to be incubating some evasion of law which seemed more subtly plausible than ordinary she made it a point to call it to Mr. Tutt's attention. Also, whenever, as in the present case, she felt that by following the advice given by the junior member of the firm a client was about to embark upon some dubious enterprise or questionable course of conduct she endeavored to counteract his influence by appealing to the head of the firm.

During the interview between Tutt and Payson Clifford the door had been open and she had heard all of it; moreover, after Payson had gone away Tutt had called her in and gone over the situation with her. And she regarded Tutt's advice to his client,--not the purely legal aspect of it, but the personal and persuasive part of it,--as an interference with that young gentleman's freedom of conscience.

"Dear me!--I didn't know you were still here, Minerva!" exclaimed her employer as she confronted him in the outer office. "Is anything worrying you?"

"Not dangerously!" she replied with a smile. "And perhaps it's none of my business--"

"My business is thy business, my dear!" he answered. "Without you Tutt & Tutt would not be Tutt & Tutt. My junior partner may be the eyes and legs of the firm and I may be some other portion of its anatomy, but you are its heart and its conscience. Out with it! What rascality portends?

What bird of evil omen hovers above the offices of Tutt & Tutt? Spare not an old man bowed down with the sorrows of this world! Has my shrewd a.s.sociate counseled the robbing of a bank or the kidnapping from a widowed mother of her orphaned child?"

"Nothing quite so bad as that!" she retorted. "It's merely that Mr.