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
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
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 sex
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
associate 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.
Samuel Tutt used his influence this afternoon to try to persuade a young
man not to carry out his father's wishes--expressed in a legally
ineffective way--and I think he succeeded--although I'm not quite sure."
"That must have been Payson Clifford," answered Mr. Tutt. "What were the
paternal wishes?"
"Mr. Tutt found a letter with the will in which the father asked the son
to give twenty-five thousand dollars to a Miss Sadie Burch."
"Miss Sadie Burch!" repeated Mr. Tutt. "And who is she?"
"Nobody knows," said Miss Wiggin. "But whoever she is, our
responsibility stops with advising Mr. Payson Clifford that the letter
has no legal effect. Mr. Tutt went further and tried to induce Mr.
Clifford not to respect the request contained in it. That, it seems to
me, is going too far. Don't you think so?"
"Are you certain you never heard of this Miss Burch?" suddenly asked Mr.
Tutt, peering at her sharply from beneath his shaggy eyebrows.
"Never," she replied.
"H'm!" ejaculated Mr. Tutt. "A woman in the case!"
"What sort of a young fellow is this Payson Clifford?" inquired Miss
Wiggin after a moment.
"Oh, not so much of a much!" answered Mr. Tutt whimsically.
"And what was the father like?" she continued with a woman's curiosity.
"He wasn't so much of a much, either, evidently," answered Mr. Tutt.
We have previously had occasion to comment upon the fact that no client,
male or female, consults a lawyer with regard to what he ought to do.
Women, often having decided to do that which they ought not to do,
attempt to secure counsel's approval of the contemplated sin; but while
a lawyer is sometimes called upon to bolster up a guilty conscience,
rarely is he sincerely invited to act as spiritual adviser. Most men
being worse than their lawyers, prefer not to have the latter find them
out. If they have made up their minds to do a mean thing they do not
wish to run the chance of having their lawyer shame them out of it. That
is their own business. And it should be! The law presents sufficiently
perplexing problems for the lawyer without his seeking trouble in the
dubious complexities of his client's morals! Anyhow, that is the
regulation way a lawyer looks at it and that is the way to hold one's
clients. Do what you are instructed to do--so long as it isn't too raw!
Question the propriety of his course and while your client may follow
your advice in this single instance he probably will not return again.
The paradoxical aspect of the matter with Mr. Tutt was that while he was
known as a criminal lawyer whenever he was asked for advice he concerned
himself quite as much with his client's moral as his legal duty. The
rather subtle reason for this was probably to be found in the fact that
since he found the law so easy to circumvent he preferred to disregard
it entirely as a sanction of conduct and merely to ask himself "Now is
this what a sportsman and a gentleman would do?" The fact that a man was
a technical criminal meant nothing to him at all; what interested him
was whether the man was or was not a "mean" man. If he was, to hell with
him! In a word, he applied to any given situation the law as it ought to
be and not the law as it was. A very easy and flexible test! say you,
sarcastically. Do you really think so? There may be forty different laws
upon the same subject in as many different states of our political
union, but how many differing points of view upon any single moral
question would you find among as many citizens? The moral code of decent
people is practically the same all over the terrestrial ball, and
fundamentally it has not changed since the days of Hammurabi. The ideas
of gentlemen and sportsmen as to what "is done" and "isn't done" haven't
changed since Fabius Tullius caught snipe in the Pontine marshes.
Mr. Tutt was a crank on this general subject and he carried his
enthusiasm so far that he was always tilting like Don Quixote at some
imaginary windmill, dragging a very unwilling Sancho Panza after him in
the form of his reluctant partner. Moreover, he had a very keen sympathy
for all kinds of outcasts, deeming most of them victims of the sins of
their own or somebody's else fathers. So when he learned from Miss
Wiggin that Tutt had presumed to interfere with the financial prospects
of the unknown Miss Sadie Burch he was distinctly aggrieved, less on her
account to be sure than upon that of his client's whom he regarded more
or less in his keeping. And, as luck would have it, the object of his
grievance, having forgotten something, at that moment unexpectedly
reentered the office to retrieve it.
"Hello, Mr. Tutt!" he exclaimed. "Not gone yet!"
His senior partner glanced at him sharply, while Miss Wiggin hastily
sidestepped into the corridor.
"Look here, Tutt!" said Mr. Tutt. "I don't know just what you've been
telling young Clifford, or how you've been interfering in his private
affairs, but if you've been persuading him to disregard any wish of his
father plainly expressed in his own handwriting and incorporated with
his will you've gone further than you've any right to go."
"But," expostulated Tutt, "you know how dangerous it is to meddle with
things like that. Our experience certainly shows that it's far wiser to
let the law settle all doubtful questions than to try to guess what the
final testamentary intention of a dead testator really was. Don't you
remember the Dodworth case? A hypersensitive conscience cost our widowed
client ten thousand dollars! I say, leave well enough alone."
"'Well enough'! 'Well enough'!" snarled Mr. Tutt. "Are you going to
constitute yourself the judge of what is well enough for a young man's
soul? I give you fair warning, Tutt: he's heard your side of it, but
before he gets through he's going to hear mine as well!"
Samuel Tutt turned a faint pink in the region of his collar.
"Why, certainly, Mr. Tutt!" he stammered. "Do so, by all means!"
"You jolly well bet I will!" replied Mr. Tutt, jamming on his stovepipe.
Several days passed, however, without the subject being mentioned
further, while the proper steps to probate the will were taken as usual.
Payson Clifford's dilemma had no legal reaction. He had made up his mind
and he was going to stick to it. He had taken the opinion of counsel and
was fully satisfied with what he had done. Nobody was going to know
anything about it, anyway. When the proper time came he would burn the
Sadie Burch letter and forget Sadie Burch. That is, he thought he was
going to and that he could. But--as Plautus says: "_Nihil est miserius
quam animus hominis conscius_."