Part 3 out of 5
"Yes, yes!" murmured Tutt, his usual style completely cramped.
"No matter what!"
"Yes," faintly tuttered Tutt.
"Well," continued Higgleby, taking out a cigar that in shape and
looseness of wrapping closely resembled its owner, "now that's settled,
let's get down to brass tacks. Here's a copy of the indictment."
He produced a document bearing a large gold seal.
"Those robbers made me pay a dollar-sixty for certification!" he
remarked peevishly, indicating the ornament. "What good is certification
to me? As if I wanted to pay to make sure I was accused in exact
language! Anybody can draw an indictment for bigamy!"
COURT OF GENERAL SESSIONS OF THE PEACE IN AND FOR THE COUNTY OF NEW
The People of the State of New York against
The Grand Jury of the County of New York, by this indictment,
accuse Theophilus Higgleby of the crime of bigamy, committed as
The said Theophilus Higgleby, late of the borough of Manhattan of
the city of New York in the county of New York, aforesaid, on the
eleventh day of May in the year of our Lord one thousand nine
hundred and nineteen, at Cook County and the city of Chicago in the
state of Illinois, did marry one Tomascene Startup, and her, the
said Tomascene Startup, did then and there have for his wife;
And afterward, to wit, on the seventeenth day of December in the
year of our Lord one thousand nine hundred and nineteen, at the
borough of Manhattan of the city of New York in the county of New
York aforesaid, did feloniously marry and take as his wife one
Alvina Woodcock, and to the said Alvina Woodcock was then and there
married, the said Tomascene Startup being then and there living and
in full life, against the form of the statute in such case made and
provided, and against the peace of the people of the state of New
York and their dignity.
Such was the precise accusation against the isosceles-triangular client,
who now sat so limply and disjointedly on the opposite side of Tutt's
desk with a certain peculiar air of assurance all his own, as if, though
surprised and somewhat annoyed at the grand jury's interference with his
private affairs, he was nevertheless--being captain of his own soul--not
particularly disturbed about the matter.
"And--er--did you marry these two ladies?" inquired Tutt
"Sure!" responded Higgleby without hesitation.
"May I ask why?"
"Why not?" returned Higgleby. "I'm a traveling man."
"Look here," suddenly demanded Tutt. "Were you ever a lawyer?"
"Sure I was!" responded Mr. Higgleby. "I was a member of the bar of
Osceola County, Florida."
"You don't say!" gasped Tutt.
"And what, may I ask, are you now?"
"Now I'm a bigamist!" answered Mr. Higgleby.
We forget precisely who it was that so observantly said to another,
"Much learning doth make thee mad." At any rate the point to be noted is
that overindulgence in erudition has always been known to have an
unfortunate effect upon the intellectual faculty. Too much wine--though
it must have required an inordinate quantity in certain mendacious
periods--was regarded as provocative of truth; and too many books as
clearly put bats in a man's belfry. The explanation is of course simple
enough. If one overweights the head the whole structure is apt to become
unbalanced. This is the reason why we hold scholars in such light
esteem. They are an unbalanced lot. And after all, why should they get
paid more than half the wage of plumbers or locomotive firemen? What is
easier than sitting before a comfortable steam radiator and reading an
etymological dictionary or the Laws of Hammurabi? They toil not even if
their heads spin. Only in Germany has the pedagogue ever received full
meed of gold and of honor--and look at Germany!
Pedants have never been much considered by men of action. They never
will be. Experience is the only teacher, which, in the language of Amos
Eno, who left two millions to the Institute of Mechanics and Tradesmen,
is "worth a damn." We Americans abhor any affectation of learning; hence
our weakness for slang. I should apologize for the word "weakness." On
the contrary it is a token of our virile independence, our scorn for the
delicatessen of education, mere dilettanteism. And this has its
practical side, for if we don't know how to pronounce the words
"evanescent persiflage" we can call it "bunk" or "rot." We suspect all
college graduates. We don't want them in our business. They slink
through our lives like pickpockets fearful of detection.
What has all this to do with anything? It has to do, dear reader, with
Mr. Caput Magnus, the assistant of the district attorney of the county
of New York, whose duty it was to present the evidence in all criminal
cases to the grand jury and make ready the instruments of torture known
as bills of indictment for that august body's action thereon.
For by all the lights of the Five Points, Chinatown--Mulberry, Canal,
Franklin, Lafayette and Centre streets--Pontin's Restaurant, Moe Levy's
One Price Tailoring Establishment, and even by those of the glorious
days of Howe & Hummel, by the Nine Gods of Law--and more--Caput Magnus
was a learned savant. He and he alone of all the members of the bar on
the pay roll of the prosecutor's office, housed in their smoke-hung
cubicles in the Criminal Courts Building, knew how to draw up those
complicated and awful things with their barbed-wire entanglements of
"saids," "then and there beings," "with intents," "dids," "to wits," and
"aforesaids" in all the verbal chaos with which the law requires those
accused of crime to be "simply, clearly and directly" informed of the
nature of the offense charged against them, in order that they may know
what to do about it and prepare their defense.
And while we are on it--and in order that the reader may be fully
instructed and qualified to pursue Tutt & Tutt through their various
adventures hereafter--we may as well add that herein lies one of the
pitfalls of crime; for the simple-minded burglar or embezzler may
blithely make way with a silver service or bundle of bank notes only to
find himself floundering, horse, foot and dragoons, in a quagmire of
phraseology from which he cannot escape, wriggle as he will. Many such a
one has thrown up his hands--and with them silver service, bank notes
and all--in horror at what the grand jury has alleged against him.
Indeed there is a well-authenticated tradition that a certain gentleman
of color who had inadvertently acquired some poultry belonging to
another, when brought to the bar and informed that he theretofore, to
wit, in a specified year of our Lord in the night time of the day
aforesaid, the outhouse of one Jones then and there situate,
feloniously, burglariously did break into and enter with intent to
commit a crime therein, to wit, the goods, chattels and personal
property of the said Jones then and there being found, then and there
feloniously and burglariously by force of arms and against the peace of
the people to seize, appropriate and carry away, raised his voice in
anguish and cried:
"Fo de Lawd sake, jedge, Ah didn't do none ob dem tings--all Ah done was
to take a couple ob chickens!"
Thus to annihilate a man by pad and pencil is indeed an art worthy of
admiration. The pen of an indictment clerk is oft mightier than the
sword of a Lionheart, the brain behind the subtle quill far defter than
said swordsman's skill. Moreover, the ingenuity necessary to draft one
of these documents is not confined to its mere successful composition,
for having achieved the miraculous feat of alleging in fourteen ways
without punctuation that the defendant did something, and with a final
fanfare of "saids" and "to wits" inserted his verb where no one will
ever find it, the indicter must then be able to unwind himself, rolling
in and out among the "dids" and "thens" and "theres" until he is once
more safely upon the terra firma of foolscap at the head of the first
Mr. Caput Magnus could do it--with the aid of a volume of printed forms
devised in the days of Jeremy Bentham. In fact, like a camel who smells
water afar off, he could in a desert of verbal sand unerringly find an
oasis of meaning. Therefore was Caput Magnus held in high honor among
the pack of human hounds who bayed at the call of Huntsman Peckham's
horn. Others might lose the scent of what it was all about in the
tropical jungle of an indictment eleven pages long, but not he. Like the
old dog in Masefield's "Reynard the Fox," Mr. Magnus would work through
ditches full of legal slime, nose through thorn thickets of confusion,
dash through copses and spinneys of words and phrases, until he snapped
close at the heels of intelligibility. The Honorable Peckham couldn't
have drawn an indictment to save his legal life. Neither could any of
the rest. Neither could Caput without his book of ancient forms--though
he didn't let anybody know it.
Shrouded in mystery on a salary of five thousand dollars a year, Caput
sat in the shrine of his inner office producing literature of a clarity
equaled only by that of George Meredith or Mr. Henry James. He was the
Great Accuser. He could call a man a thief in more different ways than
any deputy assistant district attorney known to memory--with the aid of
his little book. He could lasso and throw any galloping criminal,
however fierce, with a gracefully uncoiling rope of deadly adjectives.
On all of which he properly prided himself until he became unendurable
to his fellows and insufferable to Peckham, who would have cheerfully
fired him months gone by had he had a reason or had there been any other
legal esoteric to take his place.
Yet pride goeth before a fall. And I am glad of it, for Magnus was a
conceited little ass. This yarn is about the fall of Caput Magnus almost
as much as it is about the uxorious Higgleby, though the two are
inextricably entwined together.
* * * * *
"Mr. Tutt," remarked Tutt after Higgleby's departure, "that new client
of ours is certainly _sui generis_."
"That's no crime," smiled the senior partner, reaching for the
"His knowledge of matrimony and the laws governing the domestic
relations is certainly exhaustive--not to say exhausting. I look like a
piker beside him."
"For which," replied Mr. Tutt, "you may well be thankful."
"I am," replied Tutt devoutly. "But you could put what I know about
bigamy in that malt-extract bottle."
"I prefer the present contents!" retorted Mr. Tutt. "Bigamy is a
fascinating crime, involving as it does such complicated subjects as the
history of the institution of marriage, the ecclesiastical or canonical
law governing divorce and annulment, the interesting doctrines of
affinity and consanguinity, suits for alienation of affection and
criminal conversation, the conflict of laws, the White Slave Act--"
"Interstate commerce, so to speak?" suggested Tutt mischievously.
"Condonation, collusion and connivance," continued Mr. Tutt, brushing
him aside, "reinstitution of conjugal rights, the law of feme sole, The
Married Woman's Act, separation _a mensa et thoro_, abandonment,
jurisdiction, alimony, custody of children, precontract--"
"Help! You're breaking my heart!" cried Tutt. "No little lawyer could
know all about such things. It would take a big lawyer."
"Not at all! Not at all!" soothed Mr. Tutt, sipping his eleven-o'clock
nourishment and fingering for a stogy. "When it comes to divorce one
lawyer knows as much about the law as another. Not even the Supreme
Court is able to tell whether a man and woman are really married or not
without calling in outside assistance."
"Well, who can?" asked Tutt anxiously.
"Nobody," replied his partner with gravity, biting off the end of a
last year's stogy salvaged from the bottom of the letter basket. "Once a
man's married his troubles not only begin but never end."
"By the way," said Tutt, "speaking of this sort of thing, I see that
that Frenchman whom we referred to our Paris correspondent has just been
granted a divorce from his American wife."
"You mean the French diplomat who married the Yankee vaudeville artist
"Yes," answered Tutt. "You recall they met in Shanghai and took a flying
trip to Mongolia, where they were married by a Belgian missionary. The
court held that the marriage was invalid, as the French statutes require
a native of that country marrying abroad to have the ceremony performed
either before a French diplomatic official or 'according to the usages
of the country in which the marriage is performed.'"
"Wasn't the Belgian missionary a diplomatic official?" asked Mr. Tutt.
"Evidently not sufficiently so," replied his partner. "Anyhow, in
Mongolia there are only two methods sanctified by tradition by which a
man may secure a wife--capture or purchase."
"Well, didn't our client capture the actress?"
"Only with her consent--which I assume would be collusion under the
French law," said Tutt. "And he certainly didn't buy her--though he
might have. It appears that in that happy land a wife costs from five
camels up; five camels for a flapper and so on up to thirty or forty
camels for an old widow, who invariably brings the highest quotation."
"In Mongolia age evidently ripens and mellows women as it does wine in
other countries," reflected Mr. Tutt.
"But you can buy some women for five pounds of rice," added Tutt. "Queer
country, isn't it?"
"Not at all!" declared his senior. "Even in America every man pays and
pays and pays for his wife--through the nose!"
Tutt grinned appreciatively.
"However that may be," he ventured, "a man who enters into a marriage
"Marriage isn't a contract," interrupted Mr. Tutt.
"What is it?"
"It's a status--something entirely different--like slavery."
"It's like slavery all right!" agreed Tutt. "But we always speak of a
contract of marriage, don't we?"
"Quite inaccurately. The only contract in a marriage is what we commonly
refer to as the engagement; that is a real contract and is governed by
the laws of contracts. The marriage itself is an entirely different
thing. When a marriage is performed and consummated the parties have
changed their condition; they bear an entirely new relationship to
society, which, as represented by the state, acquires an interest in the
transaction, and all you can say about it is that whereas they were both
single before, they are married now, and that in the eyes of the law
their status has been altered to one as distinct and clearly defined as
that which exists between father and son, guardian and ward or master
"Hear! Hear!" remarked Tutt. "But I don't see why it isn't a
contract--or very much like one," he persisted.
"It is like one in that its validity, like that of civil contracts
generally, is determined by the law governing the place where it was
entered into," went on Mr. Tutt oracularly, as if addressing the court
of appeals. "But it differs from a contract for the reason that the
parties are not free to fix its terms, which are determined for them by
the state; that they cannot modify or rescind it by mutual consent; that
the nature of the marriage status changes with the state and the laws of
the state where the parties happen to be domiciled; and that damages
cannot be recovered for a breach of marital duty."
"Do you know I never thought of that before," admitted Tutt. "But it's
"It is to the interest of society to have the relationship orderly and
permanent," continued his partner. "That is why the state is so alert
with regard to divorce proceedings and vigilant to prevent fraud or
collusion. You may say that the state is always a party to every
matrimonial action--even if it is not actually interpleaded--and that
such proceedings are triangular and minus many of the characteristics of
the ordinary civil suit."
"I suppose another reason for that is that originally marriage and
divorce were entirely in the hands of the church, weren't they?"
"Exactly. From very early days in England the church claimed
jurisdiction of all matters pertaining to marriage, on the ground that
it was a sacrament."
"Did the ecclesiastical courts take the position that all marriages were
made in heaven?"
Mr. Tutt shrugged his shoulders.
"'Once married, always married,' was their doctrine."
"Then how did people who were unhappily married get rid of one another?"
"They didn't--if the courts ruled that they had actually been
married--but that left a loophole. When was a marriage not a marriage?
Answer: When the parties were closely enough related by blood or
marriage, or either of them was mentally incapable, under age, victims
of duress, fraud, mistake, previously contracted for, or--already
"Ah!" breathed Tutt, thinking of Mr. Higgleby.
"The ecclesiastical law remained without any particular variation until
after the American Revolution and the colonies separated from Great
Britain, and as there was no union of church and state on this side of
the water, and so no church to take control of the subject or
ecclesiastical courts to put its doctrines into effect, for a while
there was no divorce law at all over here, and then one by one the
states took the matter up and began to make such laws about it as each
saw fit. Hence the jolly old mess we are in now!"
"Jolly for us," commented Tutt. "It means dollars per year to us. Well,"
he remarked, stretching his legs and yawning, "divorce is sure an evil."
"That's no news," countered Mr. Tutt. "It was just as much of an evil in
the time of Moses, of Julius Caesar, and of Edward the Confessor as it
is now. There hasn't been anything approaching the flagrancy of Roman
divorce in modern history."
"Thank heaven there's still enough to pay our office rent--anyhow!" said
Tutt contentedly. "I hope they won't do anything so foolish as to pass
a national divorce law."
"They won't," Mr. Tutt assured him. "Most Congressmen are lawyers and
are not going to take the bread out of their children's mouths. Besides,
the power to regulate the domestic relations of the United States, not
being delegated under the Constitution to the Federal Government, is
expressly retained by the states themselves."
"You've given me a whole lot of ideas," admitted Tutt. "If I get you
rightly, as each state is governed by its own independent laws, the
status of married persons must be governed by the law of the state where
they are; otherwise if every couple on some theory of exterritoriality
carried the law of the state where they happened to have been joined
together round with them we would have the spectacle of every state in
the union interpreting the divorce laws of every other state--confusion
"On the other hand," returned Mr. Tutt, "the law is settled that a
marriage valid when made is valid everywhere; and conversely, if invalid
where made is invalid everywhere--like our Mongolian case. If that were
not so every couple in order to continue legally married would have to
go through a new ceremony in every state through which they traveled."
"Right-o!" whistled Tutt. "A parson on every Pullman!"
"It follows," continued Mr. Tutt, lighting a fresh stogy and warming to
his subject, "that as each state has the right to regulate the status of
its own citizens it has jurisdiction to act in a divorce proceeding
provided one of the parties is actually domiciled within its borders.
Naturally this action must be determined by its own laws and not by
those of any other state. The great divergence of these laws makes
"Hallelujah!" cried Tutt. "Now, in the words of the psalmist, you've
said a mouthful! I know a man who at one and the same time is legally
married to one woman in England, to another in Nevada, is a bigamist in
New York, and--"
"What else could he be except a widower in Pittsburgh?" pondered the
elder Tutt. "But it's quite possible. There's a case going on now where
a woman in New York City is suing her ex-husband for a divorce on the
usual statutory ground, and naming his present wife as co-respondent,
though the plaintiff herself divorced him ten years ago in Reno, and he
married again immediately after on the strength of it."
"I'm feeling stronger every minute!" exclaimed Tutt. "Surely in all this
bedlam we ought to be able to acquit our new client Mr. Higgleby of the
charge of bigamy. At least _you_ ought to be able to. I couldn't."
"What's the difficulty?" queried Mr. Tutt.
"The difficulty simply is that he married the present Mrs. Higgleby on
the seventeenth of last December here in the city of New York, when he
had a perfectly good wife, whom he had married on the eleventh of the
preceding May, living in Chicago."
"What on earth is the matter with him?" inquired Mr. Tutt.
"He simply says he's a traveling man," replied his partner, "and--he
happened to be in New York."
"Well, the next time he calls, you send him in to see me," directed Mr.
Tutt. "What was the present lady's name?"
"Woodcock," answered Tutt. "Alvina Woodcock."
"And she wanted to change to Higgleby?" muttered his partner. "I wonder
"Oh, there's something sort of appealing about him," acknowledged Tutt.
"But he don't look like a bigamist," he concluded. "What does a bigamist
look like?" meditated Mr. Tutt as he lit another stogy.
* * * * *
"Good morning, Mr. Tutt," muttered the Honorable Peckham from behind the
imitation rubber plant in his office, where he was engaged in
surreptitiously consuming an apple. "Um--be with you in a minute. What's
on your mind?"
Mr. Tutt simultaneously removed his stogy with one hand and his
stovepipe with the other.
"I thought we might as well run over my list of cases," he replied. "I
can offer you a plea or two if you wish."
"Do I!" ejaculated the D.A., rolling his eyes heavenward. "Let's hear
the Roll of Honor."
Mr. Tutt placed his hat, bottom side up, on the carpet and lowered
himself into a huge leather armchair, furnished to the county by a
political friend of Mr. Peckham and billed at four hundred per cent of
the regular retail price. Then he reinserted the stogy between his lips
and produced from his inside pocket a typewritten sheet.
"There's Watkins--murdered his stepmother--indicted seven months ago.
Give you murder in the second?"
"I'll take it," assented Peckham, lighting a cigar in a businesslike
manner. "What else you got?"
"Joseph Goldstein--burglary. Will you give him grand larceny in the
The Honorable Peckham shook his head.
"Sorry I can't oblige you, old top," he said regretfully. "He's called
the King of the Fences. If I did, the papers would holler like hell.
I'll make it any degree of burglary, though."
"Very well. Burglary in the third," agreed Mr. Tutt, jotting it down.
"Then here's a whole bunch--five--indicted together for assault on a
"You can have third degree for the lot," grunted Peckham laconically.
"All right," said Mr. Tutt. "Now for the ones that are going to trial.
Here's Jennie Smith, indicted for stealing a mandarin chain valued at
sixty-five dollars up at Monahaka's. The chain's only worth about
six-fifty and I can prove it. Monahaka don't want to go to trial because
he knows I'll show him up for the Oriental flimflammer that he is. But
of course she took it. What do you say? I'll plead her to petty and you
give her a suspended sentence? That's a fair trade."
"Sure," he said finally. "I'm agreeable. Only tell Jennie that next time
I'll have her run out of town."
Mr. Tutt nodded.
"I'll whisper it to her. Now then, here's Higgleby--"
"Higgle who?" inquired Peckham dreamily.
"Bee--by--Higgleby," explained Mr. Tutt. "For bigamy. I want you to
dismiss the indictment for me."
"You'll never convict him."
"Just because you never will!" Mr. Tutt assured him with earnestness.
"And you might as well wipe him off the list."
"Anything the matter with the indictment?" asked the D.A. "Caput Magnus
drew it. He's a good man, you know."
Mr. Tutt drew sententiously on his stogy.
"I would like to tell you all my secrets," he replied after a pause,
"but I can't afford to. The indictment is in the usual form. But just
between you and me, you'll never convict Higgleby as long as you live."
"Didn't he marry two joint and several ladies?"
"And one of 'em right here in New York County?"
"Well, how in hell can I dismiss the indictment?"
"Oh, easily enough. Lack of proof as to the first marriage in Chicago,
for instance. How are you going to prove he wasn't divorced?"
"That's matter of defense," retorted Peckham.
"What's a little bigamy between friends, anyway?" ruminated the old
lawyer. "It's a kind of sumptuary offense. People will marry. And it's
good policy to have 'em. If they happen to overdo it a little--"
"Well, if I do chuck the darn thing out what will you give me in
return?" asked Peckham. "Of course, bigamy isn't my favorite crime or
anything like that. I'm no bloodhound on matrimonial offenses. How'll
"If you'll throw out Higgleby I'll plead Angelo Ferrero to
manslaughter," announced Mr. Tutt with a grand air of bestowing largess
upon an unworthy recipient.
"Cock-a-doodle-do!" chortled Peckham. "A lot you will! Angelo's halfway
to the chair already yet!"
"That's the best I'll do," replied Mr. Tutt, feeling for his hat.
Peckham hesitated. Mr. Tutt was a fair dealer. And he wanted to get rid
"Give you murder in the second," he urged.
"Nothing doing," answered the D.A. definitely. "Your Mr. Higglebigamy'll
have to stand trial."
"Oh, very well!" replied Mr. Tutt, unjointing himself. "We're
ready--whenever you are."
The old lawyer's lank figure had hardly disappeared out of the front
office when Peckham rang for Caput Magnus.
"Look here, Caput," he remarked suspiciously to the indictment clerk,
"is there anything wrong with that Higgledy indictment?"
"Higgleby, you mean, I guess," replied Mr. Magnus, regarding the D.A. in
a superior manner over the tops of his horn-rimmed spectacles. "Nothing
is the matter with the indictment. I have followed my customary form. It
has stood every test over and over again. Why do you ask?"
The Honorable Peckham turned away impatiently.
"Oh--nothing. Look here," he added unexpectedly, "I think I'll have you
try that indictment yourself."
"Me!" ejaculated Caput in horror. "Why, I never tried a case in my
"Well, 's time you began!" growled the D.A.
"I--I--shouldn't know what to do!" protested Mr. Magnus in agony at the
"Where the devil would we be if everybody felt like that?" demanded his
master. "You're supposed to be a lawyer, aren't you?"
"But I--I--can't! I--don't know how!"
"Hang it all," cried Peckham furiously, "you go ahead and do as I say.
You indicted Higgledy; now you can try Higgledy!"
He was utterly unreasonable, but his anger was genuine if baseless.
"Oh, very well, sir," stammered Mr. Magnus. "Of course I'll--I must--do
whatever you say."
"You better!" shouted Peckham after his retreating figure. "You little
Then he threw himself down in his swivel chair with a bang.
"Judas H. Priest!" he roared at the rubber plant. "I'd give a good deal
for a decent excuse to fire that blooming nincompoop!"
Meantime, as the object of his ire slunk down the corridor darkness
descended upon the soul of Caput Magnus. For Caput was what is known as
an office lawyer and had never gone into court save as an onlooker
or--as he would have phrased it--an _amicus curiae_. He was a perfect
pundit--"a hellion on law," according to the Honorable Peckham--a
strutting little cock on his own particular dunghill, but, stripped of
his goggles, books, forms and foolscap, as far as his equanimity was
concerned he might as well have been in face, figure and general
objectionability. No longer could he be heard roaring for his
stenographer. Instead, those of his colleagues who paused stealthily
outside his door on their way over to Pont's for "five-o'clock tea"
heard dulcet tones floating forth from the transom in varying
"Ahem! H'm! Gentlemen of the jury--h'm! The defendant is indicted for
the outrageous crime of bigamy! No, that won't do! Gentlemen of the
jury, the defendant is indicted for the crime of bigamy! H'm! The crime
of bigamy is one of those atrocious offenses against the moral law--"
"Oh! Oh!" choked the legal assistants as they embraced themselves
wildly. "Oh! Oh! Caput's practisin'! Just listen to 'im! Ain't he the
little cuckoo! Bet he's takin' lessons in elocution! But won't old Tutt
just eat him alive!"
And in the stilly hours of the early dawn those sleeping in tenements
and extensions adjacent to the hall bedroom occupied by Caput were
roused by a trembling voice that sought vainly to imitate the
nonchalance of experience, declaiming: "Gentlemen of the jury, the
defendant is indicted for the crime of bigamy! This offense is one
repugnant to the instincts of civilization and odious to the tenets of
religion!" And thereafter they tossed until breakfast time, bigamy
becoming more and more odious to them every minute.
No form of diet, no physical exercise, no "reducicle" could have
achieved the extraordinary alteration in Mr. Magnus' appearance that was
in fact induced by his anxiety over his prospective prosecution of
Higgleby. Whereas erstwhile he had been smug and condescending,
complacent, lethargic and ponderous, he now became drawn, nervous,
apprehensive and obsequious. Moreover, he was markedly thinner. He was
obviously on a decline, caused by sheer funk. Speak sharply to him and
he would shy like a frightened pony. The Honorable Peckham was
enraptured, claiming now to have a system of getting even with people
that beat the invention of Torquemada. When it was represented to him
that Caput might die, fade away entirely, in which case the office would
be left without any indictment clerk, the Honorable Peckham profanely
declared that he didn't care a damn. Caput Magnus was going to try
Higgleby, that was all there was to it! And at last the day came.
Gathered in Judge Russell's courtroom were as many of the office
assistants as could escape from their duties, anxious to officiate at
the legal demise of Caput Magnus. Even the Honorable Peckham could not
refrain from having business there at the call of the calendar. It
resembled a regular monthly conference of the D.A.'s professional staff,
which for some reason Tutt and Mr. Tutt had also been invited to attend.
Yea, the spectators were all there in the legal colosseum waiting
eagerly to see Caput Magnus enter the arena to be gobbled up by Tutt &
Tutt. They thirsted for his blood, having been for years bored by his
brains. They would rather see Caput Magnus made mincemeat of than
ninety-nine criminals convicted, even were they guilty of bigamy.
But as yet Caput Magnus was not there. It was ten-twenty-nine. The clerk
was there; Mr. Higgleby, isosceles, flabby and acephalous as ever, was
there; Tutt and Mr. Tutt were there; and Bonnie Doon, and the
stenographer and the jury. And on the front bench the two wives of
Higgleby sat, side by side, so frigidly that had that gentleman
possessed the gift of prevision he would never have married either of
them; Mrs. Tomascene Startup Higgleby and Mrs.--or Miss--Alvina Woodcock
(Higgleby)--depending upon the action of the jury. The entire cast in
the eternal matrimonial triangular drama was there except the judge and
the prosecutor in the form of Caput Magnus.
And then, preceding the judge by half a minute only, his entrance timed
histrionically to the second, he came, like Eudoxia, like a flame out of
the east. In swept Caput Magnus with all the dignity and grace of an
Irving playing Cardinal Wolsey. Haggard, yes; pale, yes; tremulous,
perhaps; but nevertheless glorious in a new cutaway coat, patent-leather
shoes, green tie, a rosebud blushing from his lapel, his hair newly cut
and laid down in beautiful little wavelets with pomatum, his figure
erect, his chin in air, a book beneath his arm, his right hand waving in
a delicate gesture of greeting; for Caput had taken O'Leary's suggestion
seriously, and had purchased that widely known and authoritative work to
which so many eminent barristers owe their entire success--"How to Try a
Case"--and in it he had learned that in order to win the hearts of the
jury one should make oneself beautiful.
"What in hell's he done to himself?" gasped O'Leary to O'Brien.
"He'll make a wonderful corpse!" whispered the latter in response.
"Order in the court! His Honor the Judge of General Sessions!" bellowed
an officer at this moment, and the judge came in.
Everybody got up. He bowed. Everybody bowed. Everybody sat down again.
A few, deeply affected, blew their noses. Then His Honor smiled genially
and asked what business there was before the court, and the clerk told
him that they were all there to try a man named Higgleby for bigamy, and
the judge, nodding at Caput, said to go ahead and try him.
In the bottom of his peritoneum Mr. Magnus felt that he carried a cold
stone the size of a grapefruit. His hands were ice, his lips bloodless.
And there was a Niagara where his hearing should have been. But he rose,
just as the book told him to do, in all his beauty, and enunciated in
the crystal tones he had learned during the last few weeks at Madam
Winterbottom's school of acting and elocution--in syllables chiseled
from the stone of eloquence by the lapidary of culture:
"If Your Honor please, I move the cause of the People of the state of
New York against Theophilus Higgleby, indicted for bigamy."
Peckham and the rest couldn't believe their ears. It wasn't possible!
That perfect specimen of tonsorial and sartorial art, warbling like a
legal Caruso, conducting himself so naturally, easily and casually,
couldn't be old Caput Magnus! They pinched themselves.
"Say!" ejaculated Peckham. "What's happened to him? When did Sir Henry
sign up with us?"
Mr. Tutt across the inclosure in front of the jury box raised his bushy
eyebrows and looked whimsically at the D. A. over his spectacles.
"Are you ready, Mr. Tutt?" inquired the judge.
"Entirely so, Your Honor," responded the lawyer.
"Then impanel a jury."
The jury was impaneled, Mr. Caput Magnus passing through that trying
ordeal with great eclat.
"You may proceed to open your case," directed the judge.
The staff saw a very white Caput Magnus rise and bow in the direction of
the bench. Then he stepped to the jury box and cleared his throat. His
official associates held their breath expectantly. Would he--or wouldn't
he? There was a pause.
Then: "Mister Foreman and gentlemen of the jury," declaimed Caput in
flutelike tones: "The defendant is indicted for the crime of bigamy, an
offense alike repugnant to religion, civilization and to the law."
The words flowed from him like a rippling sunlit stream; encircled him
like a necklace of verbal jewels, a rosary, each word a pearl or a bead
or whatever it is. With perfect articulation, enunciation and
gesticulation Mr. Caput Magnus went on to inform his hearers that Mr.
Higgleby was a bigamist of the deepest dye, that he had feloniously,
wilfully and knowingly married two several females, and by every
standard of conduct was utterly and entirely detestable.
Mr. Higgleby, flanked by Tutt and Mr. Tutt, listened calmly. Caput
warmed to his task.
The said Higgleby, said he, had as aforesaid in the indictment committed
the act of bigamy, to wit, of marriage when he had one legal wife
already, in New York City on the seventeenth of last December, by
marrying in Grace Church Chantry the lady whom they saw sitting by the
other lady--he meant the one with the red feather in her bonnet--that is
to say, her hat, whereas the other lady, as he had said aforesaid, had
been lawfully and properly married to the defendant the preceding May,
to wit, in Chicago as aforesaid--
"Pardon me!" interrupted the foreman petulantly. "Which is the lady you
mean was married to the defendant in New York? You said she was sitting
by the other lady and that you meant the one with the red feather, but
you didn't say whether the one with the red feather was the other lady
or the one you were talking about."
Caput gagged and turned pink.
"I--I--" he stammered. "The lady in the red bonnet is--the--New York
"You mean she isn't his wife although the defendant went through the
form of marriage with her, because he was already married to another,"
suggested His Honor. "You might, I think, put things a little more
simply. However, do it your own way."
"Ye-es, Your Honor."
But Caput was lost--hopelessly. Every vestige of the composure so
laboriously acquired at Madam Winterbottom's salon had evaporated. He
felt as if he were swinging in midair hitched to a scudding aeroplane by
a rope about his middle. The mucous membranes of his throat were as dry
and as full of dust as the entrails of a carpet sweeper. His vision was
blurred and he had no control over his muscles. Weakly he leaned against
the table in front of the jury, the room swaying about him. The pains of
hell gat hold upon him. He was dying. Even the staff felt
compunction--all but the Honorable Peckham.
Judge Russell quickly sensed the situation. He was a kindly man, who had
pulled many an ass out of the mire of confusion. So with a glance at
Mr. Tutt he came to Caput's rescue.
"Let us see, Mr. Magnus," he remarked pleasantly; "suppose you prove the
Illinois marriage first. Is Mrs. Higgleby in court?"
Both ladies started from their seats.
"Mrs. Tomascene Higgleby," corrected His Honor. "Step this way, please,
The former Miss Startup made her way diffidently to the witness chair
and in a faint voice answered the questions relative to her marriage of
the preceding spring as put to her by the judge. Mr. Tutt waved her
aside and Caput Magnus felt returning strength. He had expected and
prepared for a highly technical assault upon the legality of the
ceremony performed in Cook County. He had anticipated every variety and
form of question. But Mr. Tutt put none. He merely smiled benignly upon
Caput in an avuncular fashion.
"Have you no questions, Mr. Tutt?" inquired His Honor.
"None," answered the lawyer.
"Then prove the bigamous marriage," directed Judge Russell.
Then rose at the call of justice, militantly and with a curious air of
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
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!"
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_
"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
"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
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 manieres_. 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
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
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
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
"If not delivered in five days return to
Clifford, Cobb & Weng,
Grain Dealers and Produce
597 Water Street,
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,
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
"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
"That doesn't make any difference," declared the lawyer. "Not being
witnessed in the manner required by law it's not of the slightest
"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
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
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
"But isn't a letter ever enough--under any circumstances?" inquired
"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
"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
"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
"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
"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
"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!"
"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
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
"Not dangerously!" she replied with a smile. "And perhaps it's none of
"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
"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_."
You see, Payson Clifford, having been sent to a decent school and a
decent college, irrespective of whether his father was a rotter or not,
had imbibed something of a sense of honor. Struggle as he would against
it, the shadow of Sadie Burch kept creeping athwart his mind. There were
so many possibilities! Suppose she was in desperate straits? Hadn't he
better look her up, anyhow? No, he most definitely didn't want to know
anything about her! Supposing she really had rendered some service to
his father for which she ought to be repaid as he had sought to repay
her? These thoughts obtruded themselves upon Payson's attention when he
least desired it, but they did not cause him to alter his intention to
get his hooks into his father's whole residuary estate and keep it for
himself. He had, you observe, a conscience, but it couldn't stand up
against twenty-five thousand dollars reinforced by perfectly sound legal
No, he had a good excuse for not being a gentleman and a sportsman and
he did not purpose to look for any reasons for doing differently. Then
unexpectedly he was invited to dinner by Mr. Ephraim Tutt in a funny
old ramshackle house on West Twenty-third Street with ornamented iron
piazza railings all covered with the withered stalks of long dead
wistarias, and something happened to him. "Payson Clifford's Twenty-five
Thousand Dollar Dinner." He had no suspicion, of course, what was coming
to him when he went there,--went, merely because Mr. Tutt was one of the
very few friends of his father that he knew. And he held towards the old
lawyer rather the same sort of patronizing attitude that he had had
towards the old man. It would be a rotten dinner probably followed by a
deadly dull evening with a snuffy old fossil who would tell him
long-winded, rambling anecdotes of what New York had been like when
there were wild goats in Central Park.
The snuffy old fossil, however, made no reference whatever to either old
New York or wild goats,--the nearest he came to it being wild oats.
Instead he began the dreary evening by opening a cupboard on his library
wall and disclosing three long bottles, from which he partially filled a
shining silver receptacle containing cracked ice. This he shook with
astonishing skill and vigor, meantime uttering loud outcries of
"Miranda! Fetch up the mint!" Then a buxom colored lady in calico--with
a grin like that which made Aunt Sallie famous--having appeared,
panting, with two large glasses and a bundle of green herbage upon a
silver salver, the old fossil poured out a seething decoction--of which
like only the memory remains--performed an incantation over each glass
with the odoriferous greens, smiled fondly upon the work of his hands
and remarked with amiable hospitality, "Well, my son! Glad to see
Almost immediately a benign animal magnetism pervaded the bosom of
Payson Clifford, and from his bosom reached out through his arteries and
veins, his arterioles and venioles, to the uttermost ends of his being.
He perceived in an instant that Mr. Tutt was no ordinary man and his
house no ordinary house; and this impression was intensified when,
seated at his host's shining mahogany table with its heavy cut glass and
queer old silver, he discovered that Miranda was no ordinary cook. He
began to be inflated over having discovered this Mr. Tutt, who pressed
succulent oysters and terrapin stew upon him, accompanied by a foaming
bottle of Krug '98. He found himself possessed of an astounding appetite
and a prodigious thirst. The gas lights in the old bronze chandelier
shone like a galaxy of radiant suns above his head and warmed him
through and through. And after the terrapin Miranda brought in a smoking
wild turkey with two quail roasted inside of it, and served with currant
jelly, rice cakes, and sweet potatoes fried in melted sugar. Then, as in
a dream, he heard a soul-satisfying pop and Miranda placed a tall, amber
glass at his wrist and filled it with the creaming redrose wine of
ancient Burgundy. He heard himself telling Mr. Tutt all about
himself,--the most intimate secrets of his heart,--and saw Mr. Tutt
listening attentively, almost reverently. He perceived that he was
making an astonishing impression upon Mr. Tutt who obviously thought him
a great man; and after keeping him in reasonable doubt about it for
awhile he modestly admitted to Mr. Tutt that this was so. Then he drank
several more glasses of Burgundy and ate an enormous pile of waffles
covered with maple syrup. "I'se in town, honey!" Mr. Tutt had grown
several sizes larger--the whole room was full of him. Lastly he had
black coffee and some port. It was an occasion, he asserted,--er--always
goo' weather,--or somethin'--when goo' fellows got together! He declared
with an emphasis which was quite unnecessary, but which, however, did
not disturb him, that there were too few men like themselves in the
world,--men with the advantage of education,--men of ideals. He told Mr.
Tutt that he loved him. He no longer had a father, and, evidently
relying on further similar entertainments, he wanted Mr. Tutt for one.
Mr. Tutt generously assented to act in that capacity and as the first
step assisted his guest upstairs to the library where he opened the
window a few inches.
Presently, Payson did not know how exactly, they got talking all about
life,--and Mr. Tutt said ruminatively that after all the only things
that really counted were loyalty and courage and kindness,--and that a
little human sympathy extended even in what sometimes seemed at first
glance the wrong direction often did more good--made more for real
happiness--than the most efficient organized charity. He spoke of the
loneliness of age--the inevitable loneliness of the human soul,--the
thirst for daily affection. And then they drifted off to college, and
Mr. Tutt inquired casually if Payson had seen much of his father, who,
he took occasion to remark, had been a good type of straightforward,
honest, hard-working business man.
Payson, smoking his third cigar, and taking now and then a dash of
cognac, began to think better of his old dad. He really hadn't paid him
quite the proper attention. He admitted it to Mr. Tutt--with the first
genuine tears in his eyes since he had left Cambridge;--perhaps, if he
had been more to him--. But Mr. Tutt veered off again--this time on
university education; the invaluable function of the university being,
he said, to preserve intact and untarnished in a materialistic age the
spiritual ideals inherited from the past.
In this rather commonplace sentiment Payson agreed with him
passionately. He further agreed with equal enthusiasm when his host
advanced the doctrine that after all to preserve one's honor stainless
was the only thing that much mattered. Absolutely! declared Payson, as
he allowed Mr. Tutt to press another glass of port upon him.
Payson, in spite of the slight beading of his forehead and the blurr
about the gas jets, began to feel very much the man of the world,--not a
"six bottle man" perhaps, but--and he laughed complacently--a "two
bottle man." If he'd lived back in the good old sporting days very
likely he could have done better. But he's taken care of two full
bottles, hadn't he? Mr. Tutt replied that he'd taken care of them very
well indeed. And with this opening the old lawyer launched into his
favorite topic,--to wit, that there were only two sorts of men in the
world--gentlemen, and those who were not. What made a man a gentleman
was gallantry and loyalty,--the readiness to sacrifice everything--even
life--to an ideal. The hero was the chap who never counted the cost to
himself. That was why people revered the saints, acclaimed the cavalier,
and admired the big-hearted gambler who was ready to stake his fortune
on the turn of a card. There was even, he averred, an element of
spirituality in the gambler's carelessness about money.
This theory greatly interested Payson, who held strongly with it, having
always had a secret, sneaking fondness for gamblers. On the strength of
it he mentioned Charles James Fox--there was a true gentleman and
sportsman for you! No mollycoddle--but a roaring, six bottle
fellow--with a big brain and a scrupulous sense of honor. Yes, sir!
Charley Fox was the right sort! He managed to intimate successfully that
Charley and he were very much the same breed of pup. At this point Mr.
Tutt, having carefully committed his guest to an ethical standard as far
removed as possible from one based upon self-interest, opened the window
a few more inches, sauntered over to the mantel, lit a fresh stogy and
spread his long legs in front of the sea-coal fire like an elongated
Colossus of Rhodes. He commenced his dastardly countermining of his
partner's advice by complimenting Payson on being a man whose words,
manner and appearance proclaimed him to the world a true sport and a
regular fellow. From which flattering prologue he slid naturally into
said regular fellow's prospects and aims in life. He trusted that Payson
Clifford, Senior, had left a sufficient estate to enable Payson, Junior,
to complete his education at Harvard?--He forgot, he confessed just what
the residue amounted to. Then he turned to the fire, kicked it, knocked
the ash off the end of his stogy and waited--in order to give his guest
a chance to come to himself,--for Mr. Payson Clifford had suddenly
turned a curious color, due to the fact that he was unexpectedly
confronted with the necessity of definitely deciding then and there
whether he was going to line up with the regular fellows or the second
raters, the gentlemen or the cads, the C.J. Foxes or the Benedict
Arnolds of mankind. He wasn't wholly the real thing, a conceited young
ass, if you choose, but on the other hand he wasn't by any means a bad
sort. In short, he was very much like all the rest of us. And he wasn't
ready to sign the pledge just yet. He realized that he had put himself
at a disadvantage, but he wasn't going to commit himself until he had
had a good chance to think it all over carefully. In thirty seconds he
was sober as a judge--and a sober judge at that.
"Mr. Tutt," he said in quite a different tone of voice. "I've been
talking pretty big, I guess,--bigger than I really am. The fact is I've
got a problem of my own that's bothering me a lot."
Mr. Tutt nodded understandingly.
"You mean Sadie Burch."
"Well, what's the problem? Your father wanted you to give her the money,
Payson hesitated. What he was about to say seemed so disingenuous, even
though it had originated with Tutt & Tutt.
"How do I know really what he wanted? He may have changed his mind a
dozen times since he put it with his will."
"If he had he wouldn't have left it there, would he?" asked Mr. Tutt
with a smile.
"But perhaps he forgot all about it,--didn't remember that it was
there," persisted the youth, still clinging desperately to the lesser
Tutt. "And, if he hadn't would have torn it up."
"That might be equally true of the provisions of his will, might it
not?" countered the lawyer.
"But," squirmed Payson, struggling to recall Tutt's arguments,
previously so convincing, "he knew how a will ought to be executed and
as he deliberately neglected to execute the paper in a legal fashion,
isn't it fair to presume that he did not intend it to have any legal
"Yes," replied Mr. Tutt with entire equanimity, "I agree with you that
it is fair to assume that he did not intend it to have any legal
"Well, then!" exclaimed Payson exultantly.
"But," continued the lawyer, "that does not prove that he did not intend
it to have a moral effect,--and expect you to honor and respect his
wishes, just as if he had whispered them to you with his dying breath."
There was something in his demeanor which, while courteous, had a touch
of severity, that made Payson feel abashed. He perceived that he could
not afford to let Mr. Tutt think him a cad,--when he was really a C.J.
Fox. And in his mental floundering his brain came into contact with the
only logical straw in the entire controversy.
"Ah!" he said with an assumption of candor. "In that case I should know
positively that they were in fact my father's wishes."
"Exactly!" replied Mr. Tutt. "And you'd carry them out without a
"Of course!" yielded Payson.
"Then the whole question is whether or not this paper does express a
wish of his. That problem is a real problem, and it is for you alone to
solve,--and, of course, you're under the disadvantage of having a
financial interest in the result, which makes it doubly hard."
"All the same," maintained the boy, "I want to be fair to myself."