By Advice of Counsel
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 circumstances.
"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 goddess 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 coarse
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 attitude, 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 passes 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 circumstances?" inquired
Payson.
"Well," said Tutt. "It is true that under certain exceptional
circumstances 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 pass 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 attitude 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 God, 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 circumstances 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 circumstances, 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 butt 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 document 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