proprietorship in the overmarried defendant, the wife or maiden who in
earlier days had answered to the name of Alvina Woodcock. Though she was
the injured party and though the blame for her unfortunate state rested
entirely upon Higgleby, her resentment seemed less directed toward the
offending male than toward the Chicago lady who was his lawful wife.
There was no question as to the circumstances to which she so definitely
and aggressively testified. No one could gainsay the deplorable fact
that she had, as she supposed, been linked in lawful wedlock to Mr.
Tutt's isosceles client. But there was that in her manner which
suggested that she felt that being the last she should be first, that
finding was keeping, and that possession was nine points of matrimonial
law.
And, as before, Mr. Tutt said nothing. Neither he nor Tutt nor Bonnie
Doon nor yet Higgleby showed any the least sign of concern. Caput's
momentarily returning self-possession forsook him. What portended his
ominous silence? Had he made some horrible mistake? Had he overlooked
some important jurisdictional fact? Was he now to be hoist for some
unknown reason by his own petard? He was, poor innocent--he was!
"That is the case," he announced faintly. "The People rest."
Judge Russell looked down curiously at Mr. Tutt.
"Well," he remarked, "how about it, Mr. Tutt?"
But the old lawyer only smiled.
"Come here a minute," directed His Honor.
And when Mr. Tutt reached the bench the judge said: "Have you any
defense in this case? If not, why don't you plead guilty and let me
dispose of the matter?"
"But, Your Honor," protested Mr. Tutt, "of course I have a defense--and
a most excellent one!"
"You have?"
"Certainly."
The judged elevated his forehead.
"Very well," he remarked; "if you really have one you had better go on
with it. And," he added beneath his breath, but in a tone clearly
audible to the clerk, "the Lord have mercy on your soul!"
The assistants saw Caput subside into his chair and simultaneously Mr.
Tutt slowly raise his lank form toward the ceiling.
"Gentlemen of the jury," said he benignly: "My client, Mr. Higgleby, is
charged in this indictment with the crime of bigamy committed here in
New York, in marrying Alvina Woodcock--the strong-minded lady on the
front row of benches there--when he already had a lawful wife living in
Chicago. The indictment alleges no other offense and the district
attorney has not sought to prove any, my learned and eloquent adversary,
Mr. Magnus, having a proper regard for the constitutional rights of
every unfortunate whom he brings to the bar of justice. If therefore I
can prove to you that Mr. Higgleby was never lawfully married to
Tomascene Startup in Chicago on the eleventh of last May or at any other
time, the allegation of bigamy falls to the ground; at any rate so far
as this indictment is concerned. For unless the indictment sets forth a
valid prior marriage it is obvious that the subsequent marriage cannot
be bigamous. Am I clear? I perceive by your very intelligent facial
expressions that I am. Well, my friends, Mr. Higgleby never was lawfully
married to Tomascene Startup last May in Chicago, and you will therefore
be obliged to acquit him! Come here, Mr. Smithers."
Caput Magnus suddenly experienced the throes of dissolution. Who was
Smithers? What could old Tutt be driving at? But Smithers--evidently the
Reverend Sanctimonious Smithers--was already placidly seated in the
witness chair, his limp hands folded across his stomach and his thin
nose looking interrogatively toward Mr. Tutt.
"What is your name?" asked the lawyer dramatically.
"My name is Oswald Garrison Smithers," replied the reverend gentleman in
Canton-flannel accents, "and I reside in Pantuck, Iowa, where I am
pastor of the Reformed Lutheran Church."
"Do you know the defendant?"
"Indeed I do," sighed the Reverend Smithers. "I remember him very well.
I solemnized his marriage to a widow of my congregation on July 4, 1917;
in fact to the relict of our late senior warden, Deacon Pellatiah
Higgins. Sarah Maria Higgins was the lady's name, and she is alive and
well at the present time."
He gazed deprecatingly at the jury. If meekness had efficacy he would
have inherited the earth.
"What?" ejaculated the foreman. "You say this man is married to _three_
women?"
"Trigamy--not bigamy!" muttered the clerk, _sotto voce_.
"You have put your finger upon the precise point, Mister Foreman!"
exclaimed Mr. Tutt admiringly. "If Mr. Higgleby was already lawfully
married to a lady in Iowa when he married Miss--or Mrs.--Startup in
Chicago last May, his marriage to the latter was not a legal marriage;
it was in fact no marriage at all. You can't charge a man with bigamy
unless you recite a legal marriage followed by an illegal one.
Therefore, since the indictment fails to set forth a legal marriage
anywhere followed by a marriage, legal or otherwise, in New York County,
it recites no crime, and my client must be acquitted. Is not that the
law, Your Honor?"
Judge Russell quickly hid a smile and turned to the moribund Caput.
"Mr. Magnus, have you anything to say in reply to Mr. Tutt's argument?"
he asked. "If not--"
But no response came from Caput Magnus. He was past all hearing,
understanding or answering. He was ready to be carried out and buried.
"Well, all I have got to say is--" began the foreman disgustedly.
"You do not have to say anything!" admonished the judge severely. "I
will do whatever talking is necessary. A little more care in the
preparation of the indictment might have rendered this rather absurd
situation impossible. As it is, I must direct an acquittal. The
defendant is discharged upon this indictment. But I will hold him in
bail for the action of another grand jury."
"In which event we shall have another equally good defense, Your Honor,"
Mr. Tutt assured him.
"I don't doubt it, Mr. Tutt," returned the judge good-naturedly. "Your
client seems to have loved not wisely but too well." And they all poured
out happily into the corridor--that is, all of them except Caput and the
two ladies, who remained seated upon their bench gazing fiercely and
disdainfully at each other like two tabby cats on a fence.
"So you're not married to him, either!" sneered Miss Woodcock.
"Well, I'm as much married to him as you are!" retorted Miss Startup
with her nose in the air.
Then instinctively they both turned and with one accord looked
malevolently at Caput, who, seeing in their glance something which he
did not like, slipped stealthily from his chair and out of the room,
leaving ignominiously behind him upon the floor his precious volume
entitled "How to Try a Case"!
"That Sort of Woman"
"Judge not according to the appearance."--John VII: 24.
"Tutt," said Mr. Tutt, entering the offices of Tutt & Tutt and hanging
his antediluvian stovepipe on the hat-tree in the corner, "I see by the
morning paper that Payson Clifford has departed this life."
"You don't say!" replied the junior Tutt, glancing up from the letter he
was writing. "Which one,--Payson, Senior, or Payson, Junior?"
"Payson, Senior," answered Mr. Tutt as he snipped off the end of a stogy
with the pair of nail scissors which he always carried in his vest
pocket.
"In that case, it's too bad," remarked Tutt regretfully.
"Why 'in that case'?" queried his partner.
"Oh, the son isn't so much of a much!" replied the smaller Tutt. "I
don't say the father was so much of a much, either. Payson Clifford was
a good fellow--even if he wasn't our First Citizen--or likely to be a
candidate for that position in the Hereafter. But that boy--"
"Shh!" reproved Mr. Tutt, slowly shaking his head so that the smoke from
his rat-tailed cigar wove a gray scroll in the air before his face.
"Remember that there's one thing worse than to speak ill of the dead,
and that's to speak ill of a client!"
Mr. Payson Clifford, the client in question, was a commonplace young
man who had been carefully prepared for the changes and chances of this
mortal life first at a Fifth Avenue day school in New York City,
afterwards at a select boarding school among the rock-ribbed hills of
the Granite State, and finally at Cambridge, Massachusetts, in the
cultured atmosphere of Harvard College, through whose precincts, in the
dim, almost forgotten past, we are urged to believe that the good and
the great trod musingly in their beautiful prime. He emerged with a
perhaps almost prudish distaste for the ugly, the vulgar, and the
unclean,--and with distinct delusions of grandeur. He was still in that
state not badly described by the old saw--"You can always tell a Harvard
man,--but you can't tell him much."
His mother had died when he was still a child and he preserved her
memory as the most sacred treasure of his inner shrine. He could just
recall her as a gentle and dignified presence, in contrast with whom his
burly, loud-voiced father had always seemed crass and ordinary. And
although it was that same father who had, for as long as he could
remember, supplied him with a substantial check upon the first day of
every month and thus enabled him to achieve that exalted state of
intellectual and spiritual superiority which he had in fact attained,
nevertheless, putting it frankly in the vernacular, Payson rather looked
down on the old man, who palpably suffered from lack of the advantages
which he had furnished to his son.
Payson, Sr., had never taken any particular pains to alter his son's
opinion of himself. On the whole he was more proud of him than
otherwise, recognizing that while he obviously suffered from an
overdevelopment of the ego and an excessive fastidiousness in dress, he
was, at bottom, clearly all right and a good sort. Still, he was forced
to confess that there wasn't much between them. His son expressed the
same thought by regretting that his father "did not speak his language."
So, in the winter vacation when Payson, Sr., fagged from his long day at
the office sought the "Frolics" or the "Folies," Payson, Jr., might be
seen at a concert for the harpsichord and viola, or at an evening of
Palestrina or the Earlier Gregorian Chants. Had he been less
supercilious about it this story would never have been written--and
doubtless no great loss at that. But it is the prerogative of youth to
be arrogantly merciless in its judgment of the old. Its bright lexicon
has no verdict "with mitigating circumstances." Youth is just when it is
right; it is cruel when it is wrong; and it is inexorable in any case.
If we are ever to be tried for our crimes let us have juries of white
whiskered old boys who like tobacco, crab flakes, light wines and
musical comedy.
All of which leads up to the sad admission upon our part that Payson,
Jr., was a prig. And in the very middle of his son's priggishness
Payson, Sr., up and died, and Tutt and Mr. Tutt were called upon to
administer his estate.
There may be concealed somewhere a few rare human beings who can look
back upon their treatment of their parents with honest satisfaction. I
have never met any. It is the fate of those who bring others into the
world to be chided for their manners, abused for their mistakes, and
pilloried for their faults. Twenty years difference in age turns many
an elegance into a barbarism; many a virtue into a vice-versa. I do not
perform at breakfast for the edification of my offspring upon the
mustache cup, but I chew my strawberry seeds, which they claim is worse.
My grandpapa and grandmama used to pour the coffee from their cups and
drink it from their saucers and they were--nevertheless--rated AA1 in
Boston's Back Bay Blue Book. And now my daughters, who smoke cigarettes,
object loudly to my pipe smoke! _Autre temps autres manières_. And no
man is a hero to his children. He has a hanged-sight more chance with
his valet--if in these days he can afford to keep one.
His father's death was a shock to Payson, Jr., because he had not
supposed that people in active business like that ever did die,--they
"retired" instead, and after a discreet period of semi-seclusion
gradually disintegrated by appropriate stages. But Payson, Sr., simply
died right in the middle of everything--without any chance of a
spiritual understanding--"reconciliation" would be inaccurate--with his
son. So, Payson, Jr., protestingly acquired by part cash and balance
credit a complete suit of what he scathingly described as "the barbarous
panoply of death" and, turning himself into what he similarly called a
"human catafalque," followed Payson, Sr., to the grave.
Perhaps, after all, we have been a bit hard on Payson, Jr. He was
fundamentally, as his father had perceived, good stuff, and wanted to do
the right thing. But what is the right thing? Really it isn't half as
hard to be good as to know how.
As the orphaned Payson, ensconced in lonely state in one of the funeral
hacks, was carried at a fast trot down Broadway towards the offices of
Tutt & Tutt, he consoled himself for his loss with the reflection that
this was, probably, the last time he would ever have to see any of his
relatives. Never in his short life had he been face to face with such a
gathering of unattractive human beings. He hadn't imagined that such
people existed. They oughtn't to exist. The earth should be a lovely
place, its real estate occupied only by cultured and lovely people.
These aesthetic considerations reminded him with a shock that, just as
he had been an utter stranger to them, so he had been a stranger to his
father--his poor, old, widowed father. What did he really know about
him?--not one thing! And he had never tried to find out anything about
him,--about his friends, his thoughts, his manner of life,--content
merely to cash his checks, under the unconscious assumption that the man
who drew them ought to be equally content to be the father of such a
youth as himself. But those rusty relatives! They must have been his
father's! Certainly his mother's wouldn't have been like that,--and he
felt confident he took after his mother. Still, those relatives worried
him! Up at Harvard he had stood rather grandly on his name--"Payson
Clifford, Jr.,"--with no questions asked about the "Senior" or anybody
else. He now perceived that he was to be thrown out into the world of
fact where who and what his father had been might make a lot of
difference. Rather anxiously he hoped the old gentleman would turn out
to have been all right;--and would have left enough of an estate so that
he could still go on cashing checks upon the first day of every month!
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 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?"