By Advice of Counsel
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.
"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, "assuming 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 space 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
passing whim or fancy, done in a moment of weakness or emotion or
temporary irrationality. Indeed, it may have been made under duress.
Nobody 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 assumed 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 assumed 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!" assented Payson. "What do executors
usually do under such circumstances?"
"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 buttons, the letters Uncle William wrote from the Holy Land,
outlawed fire insurance and correspondence that nobody 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 gods! It was
ignoble, 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