“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 YORK
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 follows:
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 apologetically.
“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 page.
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 malt-extract bottle.
“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 in China?”
“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 contract–“
“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 and slave.”
“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 perfectly true.”
“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?” ruminated Tutt.
“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 married.”
“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 worse confounded.”
“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 extraordinary complications.”
“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 why.”
“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 second?”
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 bartender.”
“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 you trade?”
“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 of Angelo.
“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 life!”
“Well, ‘s time you began!” growled the D.A.
“I–I–shouldn’t know what to do!” protested Mr. Magnus in agony at the mere suggestion.
“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 blathering shrimp!”
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 fluctuations:
“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 lady.”
“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, madam!”
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 law.
And, as before, Mr. Tutt said nothing. Neither he nor Tutt nor Bonnie Doon nor yet Higgleby showed any the least sign of concern. Caput’s momentarily returning self-possession forsook him. What portended his ominous silence? Had he made some horrible mistake? Had he overlooked some important jurisdictional fact? Was he now to be hoist for some unknown reason by his own petard? He was, poor innocent–he was!
“That is the case,” he announced faintly. “The People rest.”
Judge Russell looked down curiously at Mr. Tutt.
“Well,” he remarked, “how about it, Mr. Tutt?”
But the old lawyer only smiled.
“Come here a minute,” directed His Honor.
And when Mr. Tutt reached the bench the judge said: “Have you any defense in this case? If not, why don’t you plead guilty and let me dispose of the matter?”
“But, Your Honor,” protested Mr. Tutt, “of course I have a defense–and a most excellent one!”
The judged elevated his forehead.
“Very well,” he remarked; “if you really have one you had better go on with it. And,” he added beneath his breath, but in a tone clearly audible to the clerk, “the Lord have mercy on your soul!”
The assistants saw Caput subside into his chair and simultaneously Mr. Tutt slowly raise his lank form toward the ceiling.
“Gentlemen of the jury,” said he benignly: “My client, Mr. Higgleby, is charged in this indictment with the crime of bigamy committed here in New York, in marrying Alvina Woodcock–the strong-minded lady on the front row of benches there–when he already had a lawful wife living in Chicago. The indictment alleges no other offense and the district attorney has not sought to prove any, my learned and eloquent adversary, Mr. Magnus, having a proper regard for the constitutional rights of every unfortunate whom he brings to the bar of justice. If therefore I can prove to you that Mr. Higgleby was never lawfully married to Tomascene Startup in Chicago on the eleventh of last May or at any other time, the allegation of bigamy falls to the ground; at any rate so far as this indictment is concerned. For unless the indictment sets forth a valid prior marriage it is obvious that the subsequent marriage cannot be bigamous. Am I clear? I perceive by your very intelligent facial expressions that I am. Well, my friends, Mr. Higgleby never was lawfully married to Tomascene Startup last May in Chicago, and you will therefore be obliged to acquit him! Come here, Mr. Smithers.”
Caput Magnus suddenly experienced the throes of dissolution. Who was Smithers? What could old Tutt be driving at? But Smithers–evidently the Reverend Sanctimonious Smithers–was already placidly seated in the witness chair, his limp hands folded across his stomach and his thin nose looking interrogatively toward Mr. Tutt.
“What is your name?” asked the lawyer dramatically.
“My name is Oswald Garrison Smithers,” replied the reverend gentleman in Canton-flannel accents, “and I reside in Pantuck, Iowa, where I am pastor of the Reformed Lutheran Church.”
“Do you know the defendant?”
“Indeed I do,” sighed the Reverend Smithers. “I remember him very well. I solemnized his marriage to a widow of my congregation on July 4, 1917; in fact to the relict of our late senior warden, Deacon Pellatiah Higgins. Sarah Maria Higgins was the lady’s name, and she is alive and well at the present time.”
He gazed deprecatingly at the jury. If meekness had efficacy he would have inherited the earth.
“What?” ejaculated the foreman. “You say this man is married to _three_ women?”
“Trigamy–not bigamy!” muttered the clerk, _sotto voce_.
“You have put your finger upon the precise point, Mister Foreman!” exclaimed Mr. Tutt admiringly. “If Mr. Higgleby was already lawfully married to a lady in Iowa when he married Miss–or Mrs.–Startup in Chicago last May, his marriage to the latter was not a legal marriage; it was in fact no marriage at all. You can’t charge a man with bigamy unless you recite a legal marriage followed by an illegal one. Therefore, since the indictment fails to set forth a legal marriage anywhere followed by a marriage, legal or otherwise, in New York County, it recites no crime, and my client must be acquitted. Is not that the law, Your Honor?”
Judge Russell quickly hid a smile and turned to the moribund Caput.
“Mr. Magnus, have you anything to say in reply to Mr. Tutt’s argument?” he asked. “If not–“
But no response came from Caput Magnus. He was past all hearing, understanding or answering. He was ready to be carried out and buried.
“Well, all I have got to say is–” began the foreman disgustedly.
“You do not have to say anything!” admonished the judge severely. “I will do whatever talking is necessary. A little more care in the preparation of the indictment might have rendered this rather absurd situation impossible. As it is, I must direct an acquittal. The defendant is discharged upon this indictment. But I will hold him in bail for the action of another grand jury.”
“In which event we shall have another equally good defense, Your Honor,” Mr. Tutt assured him.
“I don’t doubt it, Mr. Tutt,” returned the judge good-naturedly. “Your client seems to have loved not wisely but too well.” And they all poured out happily into the corridor–that is, all of them except Caput and the two ladies, who remained seated upon their bench gazing fiercely and disdainfully at each other like two tabby cats on a fence.
“So you’re not married to him, either!” sneered Miss Woodcock.
“Well, I’m as much married to him as you are!” retorted Miss Startup with her nose in the air.
Then instinctively they both turned and with one accord looked malevolently at Caput, who, seeing in their glance something which he did not like, slipped stealthily from his chair and out of the room, leaving ignominiously behind him upon the floor his precious volume entitled “How to Try a Case”!
“That Sort of Woman”
“Judge not according to the appearance.”–John VII: 24.
“Tutt,” said Mr. Tutt, entering the offices of Tutt & Tutt and hanging his antediluvian stovepipe on the hat-tree in the corner, “I see by the morning paper that Payson Clifford has departed this life.”
“You don’t say!” replied the junior Tutt, glancing up from the letter he was writing. “Which one,–Payson, Senior, or Payson, Junior?”
“Payson, Senior,” answered Mr. Tutt as he snipped off the end of a stogy with the pair of nail scissors which he always carried in his vest pocket.
“In that case, it’s too bad,” remarked Tutt regretfully.
“Why ‘in that case’?” queried his partner.
“Oh, the son isn’t so much of a much!” replied the smaller Tutt. “I don’t say the father was so much of a much, either. Payson Clifford was a good fellow–even if he wasn’t our First Citizen–or likely to be a candidate for that position in the Hereafter. But that boy–“
“Shh!” reproved Mr. Tutt, slowly shaking his head so that the smoke from his rat-tailed cigar wove a gray scroll in the air before his face. “Remember that there’s one thing worse than to speak ill of the dead, and that’s to speak ill of a client!”
Mr. Payson Clifford, the client in question, was a commonplace young man who had been carefully prepared for the changes and chances of this mortal life first at a Fifth Avenue day school in New York City, afterwards at a select boarding school among the rock-ribbed hills of the Granite State, and finally at Cambridge, Massachusetts, in the cultured atmosphere of Harvard College, through whose precincts, in the dim, almost forgotten past, we are urged to believe that the good and the great trod musingly in their beautiful prime. He emerged with a perhaps almost prudish distaste for the ugly, the vulgar, and the unclean,–and with distinct delusions of grandeur. He was still in that state not badly described by the old saw–“You can always tell a Harvard man,–but you can’t tell him much.”
His mother had died when he was still a child and he preserved her memory as the most sacred treasure of his inner shrine. He could just recall her as a gentle and dignified presence, in contrast with whom his burly, loud-voiced father had always seemed crass and ordinary. And although it was that same father who had, for as long as he could remember, supplied him with a substantial check upon the first day of every month and thus enabled him to achieve that exalted state of intellectual and spiritual superiority which he had in fact attained, nevertheless, putting it frankly in the vernacular, Payson rather looked down on the old man, who palpably suffered from lack of the advantages which he had furnished to his son.
Payson, Sr., had never taken any particular pains to alter his son’s opinion of himself. On the whole he was more proud of him than otherwise, recognizing that while he obviously suffered from an overdevelopment of the ego and an excessive fastidiousness in dress, he was, at bottom, clearly all right and a good sort. Still, he was forced to confess that there wasn’t much between them. His son expressed the same thought by regretting that his father “did not speak his language.”
So, in the winter vacation when Payson, Sr., fagged from his long day at the office sought the “Frolics” or the “Folies,” Payson, Jr., might be seen at a concert for the harpsichord and viola, or at an evening of Palestrina or the Earlier Gregorian Chants. Had he been less supercilious about it this story would never have been written–and doubtless no great loss at that. But it is the prerogative of youth to be arrogantly merciless in its judgment of the old. Its bright lexicon has no verdict “with mitigating circumstances.” Youth is just when it is right; it is cruel when it is wrong; and it is inexorable in any case. If we are ever to be tried for our crimes let us have juries of white whiskered old boys who like tobacco, crab flakes, light wines and musical comedy.
All of which leads up to the sad admission upon our part that Payson, Jr., was a prig. And in the very middle of his son’s priggishness Payson, Sr., up and died, and Tutt and Mr. Tutt were called upon to administer his estate.
There may be concealed somewhere a few rare human beings who can look back upon their treatment of their parents with honest satisfaction. I have never met any. It is the fate of those who bring others into the world to be chided for their manners, abused for their mistakes, and pilloried for their faults. Twenty years difference in age turns many an elegance into a barbarism; many a virtue into a vice-versa. I do not perform at breakfast for the edification of my offspring upon the mustache cup, but I chew my strawberry seeds, which they claim is worse. My grandpapa and grandmama used to pour the coffee from their cups and drink it from their saucers and they were–nevertheless–rated AA1 in Boston’s Back Bay Blue Book. And now my daughters, who smoke cigarettes, object loudly to my pipe smoke! _Autre temps autres 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 success.
So it was the lesser Tutt who wrung the hand of Payson Clifford and gave him the leathern armchair by the window.
“And now about the will!” chirped Tutt, as after a labored encomium upon the virtues of Payson, Senior, deceased, he took the liberty of lighting a cigarette before he commenced to read the instrument which lay in a brown envelope upon the desk before him. “And now about the will! I suppose you are already aware that your father has made you his executor and, after a few minor legacies, the residuary legatee of his entire estate?”
Payson shook his head mutely. He felt it more becoming to pretend to be ignorant of these things under the circumstances.
“Yes,” continued Tutt cheerfully, taking up the envelope, “Mr. Tutt drew the will–nearly fifteen years ago–and your father never thought necessary to change it. It’s lain right there in our ‘Will Box’ without being disturbed more than once,–and that was seven or eight years ago when he came in one day and asked to be allowed to look at it,–I think he put an envelope containing a letter in with it. I found one there the other day.”
Payson languidly took the will in his hand.
“How large an estate did he leave?” he inquired.
“As near as I can figure out about seventy thousand dollars,” answered Tutt. “But the transfer tax will not be heavy, and the legacies do not aggregate more than ten thousand.”
The instrument was a short one,–drawn with all Mr. Tutt’s ability for compression–and filling only a single sheet. Payson’s father had bequeathed seventy-six hundred dollars to his three cousins and their children, and everything else he had left to his son. Payson rapidly computed that after settling the bills against the estate, including that of Tutt & Tutt, he would probably get at least sixty thousand out of it. At the current rate he would continue to be quite comfortable,–more so in fact than heretofore. Still, it was less than he had expected. Perhaps his father had had expensive habits.
“Here’s the letter,” went on Tutt, handing it to Payson who took out his pen-knife to open it the more neatly. “Probably a suggestion as to the disposal of personal effects–remembrances or something of the sort. It’s often done.”
The envelope was a cheap one, ornamented in the upper left hand corner with a wood cut showing a stout goddess in a night dress, evidently meant for Proserpina–pouring a Niagara of grain out of a cornucopia of plenty over a farmland stacked high with apples, corn, and pumpkins, and flooded by the beams of a rising sun with a real face. Beneath were the words:
“If not delivered in five days return to
Clifford, Cobb & Weng,
Grain Dealers and Produce
597 Water Street,
Even as his eye fell upon it Payson was conscious of its coarse vulgarity. And “Weng”! Whoever heard of such a name? He certainly had not,–hadn’t even known that his father had a partner with such an absurd cognomen! “–& Weng!” There was something terribly plebeian about it. As well as about the obvious desire for symmetry which had led to the addition of that superfluous “N.Y.” below the entirely adequate “N.Y. City.” But, of course, he’d be glad to do anything his father requested in a letter.
He forced the edge of the blade through the tough fiber of the envelope, drew forth the enclosed sheet and unfolded it. In the middle of the top was a replica of the wood cut upon the outside, only minus the “If not delivered in five days return to.” Then Payson read in his father’s customary bold scrawl the simple inscription, doomed to haunt him sleeping and waking for many moons:–
“In case of my sudden death I wish my executor to give twenty-five thousand dollars to my very dear friend Sadie Burch, of Hoboken, N.J.
For a brief–very brief–moment, a mist gathered over the letter in the son’s hand. “My dear friend Sadie Burch!” He choked back the exclamation of surprise that rose unconsciously to his lips and endeavored to suppress any facial evidence of his inner feelings. “Twenty-five thousand!” Then he held out the letter more or less casually to Tutt.
“Wee-e-ll!” whistled the lawyer softly, with a quick glance from under his eyebrows.
“Oh, it isn’t the money!” remarked Payson in a sickly tone–although of course he was lying. It _was_ the money.
The idea of surrendering nearly half his father’s estate to a stranger staggered him; yet to his eternal credit, in that first instant of bewildered agony no thought of disregarding his father’s wishes entered his mind. It was a hard wallop, but he’d got to stand it.
“Oh, that’s nothing!” remarked Tutt. “It’s not binding. You don’t need to pay any attention to it.”
“Do you really mean that that paper hasn’t any legal effect?” exclaimed the boy with such a reaction of relief that for the moment the ethical aspect of the case was entirely obscured by the legal.
“None whatever!” returned Tutt definitely.
“But it’s part of the will!” protested Payson. “It’s in my father’s own handwriting.”
“That doesn’t make any difference,” declared the lawyer. “Not being witnessed in the manner required by law it’s not of the slightest significance.”
“Not even if it is put right in with the will?”
“Not a particle.”
“But I’ve often heard of letters being put with wills.”
“No doubt. But I’ll wager you never heard of any one of them being probated.”
Payson’s legal experience in fact did not reach to this technical point.
“Look here!” he returned obstinately. “I’ll be hanged if I understand. You say this paper has no legal value and yet it is in my father’s own hand and practically attached to his will. Now, apart from any–er–moral question involved, just why isn’t this letter binding on me?”
Tutt smiled leniently.
“Have a cigarette?” he asked, and when Payson took one, he added sympathetically as he held a match for him, “Your attitude, my dear sir, does you credit. It is wholly right and natural that you should instinctively desire to uphold that which on its face appears to be a wish of your father. But all the same that letter isn’t worth the paper it’s written on–as matter of law.”
“But why not?” demanded Payson. “What better evidence could the courts desire of the wishes of a testator than such a letter?”
“The reason is simple enough!” replied Tutt, settling himself in a comfortable position. “In the eye of the law no property is ever without an owner. It is always owned by somebody, although the ownership may be in dispute. When a man dies his real property instantly passes to his heirs and his personal property descends in accordance to the local statute of distributions or, if there isn’t any, to his next of kin; but if he leaves a will, to the extent to which it is valid, it diverts the property from its natural legal destination. Thus, in effect, the real purpose of a will is to prevent the laws operating on one’s estate after death. If your father had died intestate, you would have instantly become, in contemplation of law, the owner of all his property. His will–his legal will–deprives you of a small part of it for the benefit of others. But the law is exceedingly careful about recognizing such an intention of a testator to prevent the operation of the statutes and requires him to demonstrate the sincerity and fixity of that intention by going through various established formalities, such as putting his intention in due form in a written instrument which he must sign and declare to be his last will before a certain number of competent witnesses whom he requests to sign as such and who actually do sign as such in his presence and in the presence of each other. Your father obviously did none of these things when he placed this letter with his will.”
“But isn’t a letter ever enough–under any circumstances?” inquired Payson.
“Well,” said Tutt. “It is true that under certain exceptional circumstances a man may make what is known as a nuncupative will.”
“What is a–a–nuncupative will?” asked his client.
“Technically it is an oral will, operating on personality only, made in extremis–that is, actually in fear of death–and under our statutes limited to soldiers in active military service or to mariners at sea. Under the old common law it was just as effective to pass personal estate as a written instrument.”
“But father wasn’t either a soldier or a sailor,” commented Payson, “and anyhow a letter isn’t an oral will; if it’s anything at all, it’s a written one, isn’t it?”
“That is the attitude the law takes,” nodded Tutt. “Of course, one could argue that it made no difference whether a man uttered his wishes orally in the presence of witnesses or reduced them to writing and signed them, but the law is very technical in such matters and it has been held that a will reduced to writing and signed by the testator, or a memorandum of instructions for making a will, cannot be treated as a nuncupative will; nor is a written will, drawn up by an attorney, but not signed, owing to the sickness of the testator to be treated as a nuncupative will; but upon requisite proof–in a proper case–a paper, not perfected as a written will, may be established as a nuncupative will when its completion is prevented by act of God, or any other cause than an intention to abandon or postpone its consummation. The presumption of the law is against validity of a testamentary paper not completed. There must be in the testator the _animus testandi_, which is sometimes presumed from circumstances in such cases and in such places as nuncupative wills are recognized. Now, your father being as you point out, neither a soldier nor a sailor, couldn’t have made a nuncupative will under any circumstances, even if a letter would legally be treated as such a will instead of as an ineffectual attempt to make a written one–upon which point I confess myself ignorant. Therefore”–and he tossed away his cigarette butt with an air of finality–“this letter bequeathing twenty-five thousand dollars to Sadie Burch–whoever and whatever she may be–is either an attempt to make a will or a codicil to a will in a way not recognized by the statute, or it is an attempt to add to, alter or vary a will already properly executed and witnessed by arbitrarily affixing to or placing within it an extraneous written paper.”
“Well,” commented Payson, “I understand what you’ve said about nun–nuncupative wills, all right,–that is, I think I do. But leaving them out of consideration I still don’t see why this letter can’t be regarded as _part_ of the original will.”
“For the reason that when your father executed the original document he went through every form required by the statute for making a will. If he hadn’t, it wouldn’t have been a will at all. If this paper, which never was witnessed by a single person, could be treated as a supplement or addition to the will, there would have been no use requiring the original will to be witnessed, either.”
“That seems logical,” agreed Payson. “But isn’t it often customary to incorporate other papers by referring to them in a will?”
“It is sometimes done, and usually results in nothing but litigation. You see for yourself how absurd it would be to treat a paper drawn or executed after a will was made as part of it, for that would render the requirements of the statute nugatory.”
“But suppose the letter was already in existence or was written at the same time as the will,–wouldn’t that make a difference?” hesitated Payson.
“Not a bit! Not one bit!” chirped Tutt. “The law is settled that such a paper writing can be given effect only under certain very special conditions and only to a limited extent. Anyhow that question doesn’t arise here.”
“Why not?” queried the residuary legatee. “How do you know this letter wasn’t written and placed inside the will when it was made?–And that my father supposed that of course it would be given effect?”
“In that case why shouldn’t he have incorporated the legacy in the will?” countered Tutt sharply.
“He–er–may not have wished Mr. Tutt to know about it,” murmured Payson, dropping his eyes.
“Oh,–hardly!” protested Tutt. “We can be morally certain that this letter was written and placed with the will that time your father came in here and asked to be allowed to see it, seven odd years ago. Mr. Tutt would have noticed it if your father had placed it with the will in the first instance and would have warned him that nothing of the sort could possibly be effective.”
“But,” insisted Payson, “assuming for argument’s sake that this letter was in fact written at the time the will was originally executed, what is the reason the law won’t recognize it as a valid bequest?”
Tutt smiled and fumbled in an open box for another cigarette.
“My dear sir,” he replied, “no paper could possibly be treated as part of a will–even if extant at the time the will was executed–unless distinctly referred to in the will itself. In a word, there must be a clear and unmistakable intention on the part of the testator to attempt to incorporate the extraneous paper by reference. Now, here, there is no reference to the paper in the will at all.”
“That is true!” admitted Payson. “But–“
“But even if there were,” went on Tutt, eagerly, “the law is settled in this state that where a testator–either through carelessness or a desire to economize space or effort, has referred in his will to extraneous papers or memoranda, either as fixing the names of beneficiaries of particular devises or bequests, or as fixing the amount or the manner in which the amount of such devises or bequests is to be ascertained, such a paper must not contain any testamentary disposition of property. In a word the testator having willed something can _identify_ it by means of an extraneous paper if properly designated, but he cannot _will_ the thing away by an extraneous paper no matter how referred to. For example, if A wills to B ‘all the stock covered by my agreement of May 1, with X’ it merely describes and identifies the thing bequeathed,–and that is all right. The law will give effect to the identifying agreement, although it is separate from the will and unattested. But, if A’s will read ‘and I give such further bequests as appear in a paper filed herewith’ and the paper contained a bequest to B of ‘all the stock covered by my agreement of May 1, with X’ it would be an attempted bequest outside of the will and so have no legal effect.”
“Thanks,” said Payson. “I understand. So in no event whatever could this letter have any legal effect?”
“Absolutely none whatever!–You’re perfectly safe!” And Tutt leaned back with a comfortable smile.
But Payson did not smile in return. Neither was he comfortable. Be it said for him that, however many kinds of a fool he may have been, while momentarily relieved at knowing that he had no legal obligation to carry out his father’s wishes so far as Sadie Burch was concerned, his conscience was by no means easy and he had not liked at all the tone in which the paunchy little lawyer had used the phrase “you’re perfectly safe.”
“What do you mean by ‘perfectly safe’,” he inquired rather coldly.
“Why, that Sadie Burch could never make you pay her the legacy–because it isn’t a legal legacy. You can safely keep it. It’s yours, legally and morally.”
“Well, is it?” asked Payson slowly. “Morally, isn’t it my duty to pay over the money, no matter who she is?”
Tutt, who had tilted backward in his swivel chair, brought both his feet to the floor with a bang.
“Of course it isn’t!” he cried. “You’d be crazy to pay the slightest attention to any such vague and unexplained scrawl. Listen, young man! In the first place you haven’t any idea when your father wrote that paper–except that it was at least seven years ago. He may have changed his mind a dozen times since he wrote it. It may have been a mere passing whim or fancy, done in a moment of weakness or emotion or temporary irrationality. Indeed, it may have been made under duress. Nobody but a lawyer who has the most intimate knowledge of his clients’ daily life and affairs has the remotest suspicion of–Oh, well, we won’t go into that! But, the first proposition is that in no event is it possible for you to say that the request in that letter was the actual wish of your father at the time of his death. All you can say is that at some time or other it may have been his wish.”
“I see!” agreed Payson. “Well, what other points are there?”
“Secondly,” continued Tutt, “it must be presumed that if your father took the trouble to retain a lawyer to have his will properly drawn and executed he must have known first, that it was necessary to do so in order to have his wishes carried out, and second, that no wish not properly incorporated in the will itself could have any legal effect. In other words, inferentially, he knew that this paper had no force and therefore it must be assumed that if he made it that way he intended that it should have no legal effect and did not intend that it should be carried out. Get me?”
“Why, yes, I think I do. Your point is that if a man knows the law and does a thing so it has no legal effect he should be assumed to intend that it have no legal effect.”
“Exactly,” Tutt nodded with satisfaction. “The law is wise, based on generations of experience. It realizes the uncertainties, vagaries, and vacillations of the human mind–and the opportunities afforded to designing people to take advantage of the momentary weaknesses of others–and hence to prevent fraud and insure that only the actual final wishes of a man shall be carried out it requires that those wishes shall be expressed in a particular, definite and formal way–in writing, signed and published before witnesses.”
“You certainly make it very clear!” assented Payson. “What do executors usually do under such circumstances?”
“If they have sense they leave matters alone and let the law take its course,” answered Tutt with conviction. “I’ve known of more trouble–! Several instances right here in this office. A widow found a paper with her husband’s will expressing a wish that a certain amount of money should be given to a married woman living out in Duluth. There was nothing to indicate when the paper was written, although the will was executed only a month before he died. Apparently the deceased hadn’t seen the lady in question for years. I told her to forget it, but nothing would suit her but that she should send the woman a money order for the full amount–ten thousand dollars. She kept it, all right! Well, the widow found out afterwards that her husband had written that paper thirty years before at a time when he was engaged to be married to that woman, that they had changed their minds and each had married happily and that the paper with some old love letters had, as usually happens, got mixed up with the will instead of having been destroyed as it should have been. You know, it’s astonishing, the junk people keep in their safe deposit boxes! I’ll bet that ninety-nine out of a hundred are half full of valueless and useless stuff, like old watches, grandpa’s jet cuff buttons, the letters Uncle William wrote from the Holy Land, outlawed fire insurance and correspondence that nobody will ever read,–everything always gets mixed up together,–and yet every paper a man leaves after his death is a possible source of confusion or trouble. And one can’t tell how or why a person at a particular time may come to express a wish in writing. It would be most dangerous to pay attention to it. Suppose it was _not_ in writing. Morally, a wish is just as binding if spoken as if incorporated in a letter. Would you waste any time on Sadie Burch if she came in here and told you that your father had expressed the desire that she should have twenty-five thousand dollars? Not much!”
“I don’t suppose so!” admitted Payson.
“Another thing!” said Tutt. “Remember this, the law would not _permit_ you as executor of your father’s will to pay over this money, if any other than yourself were the residuary legatee. You’d have no right to take twenty-five thousand dollars out of the estate and give it to Miss Burch at the expense of anybody else!”
“Then you say the law won’t let me pay this money to Sadie Burch whether I am willing to or not?” asked Payson.
“Not as executor. As executor you’re absolutely obliged to carry out the terms of the will and disregard anything else. You must preserve the estate intact and turn it over unimpaired to the residuary legatee!” repeated Tutt.
“But I am the residuary legatee!” said Payson.
“As executor you’ve got to pay it over in full to yourself as residuary legatee!” repeated Tutt stubbornly, evading the issue.
“Well, where does that leave me?” asked his client.
“It gets you out of your difficulty, doesn’t it?” asked Tutt. “Don’t borrow trouble! Don’t–if you’ll pardon my saying so–be an idiot!”
There was silence for several minutes, finally broken by the lawyer who came back again to the charge with renewed vigor.
“Why, this sort of thing comes up all the time. Take this sort of a case, for instance. The law only lets a man will away a certain proportion of his property to charity–says it isn’t right for him to do so, if he leaves a family. Now suppose your father had given all his property to charity, would you feel obliged to impoverish yourself for the benefit of a Home for Aged Mariners?”
“Really,” replied the bewildered Payson. “I don’t know. But anyway I’m satisfied you’re quite right and I’m tremendously obliged. However,” he added musingly, “I’d rather like to know who this Sadie Burch is!”
“If I were you, young man,” advised the lawyer sagely, “I wouldn’t try to find out!”
Mr. Payson Clifford left the offices of Tutt & Tutt more recalcitrant against fate and irritated with his family than when he had entered them. He had found himself much less comfortably provided for than he had expected, and the unpleasant impression created by the supposed paternal relatives at his father’s funeral had been heightened by the letter regarding Sadie Burch. There was something even more offensively plebeian about them than that of the vulgar Weng. It would have been bad enough to have had to consider the propriety of paying over a large sum to a lady calling herself by an elegant or at least debonair name like Claire Desmond or Lillian Lamar,–but Sadie! And Burch! Ye gods! It was ignoble, sordid. That was a fine discovery to make about one’s father!
As he walked slowly up Fifth Avenue to his hotel it must be confessed that his reflections upon that father’s memory were far from filial. He told himself that he’d always suspected something furtive about the old man, who must have been under most unusual and extraordinary obligations to a woman to whom he desired his son to turn over twenty-five thousand dollars. It was pretty nearly half of his entire fortune! Would cut down his income from around four thousand to nearly two thousand! The more he pondered upon the matter the more the lawyer’s arguments seemed absolutely convincing. Lawyers knew more than other people about such things, anyway. You paid them for their advice, and he would doubtless have to pay Tutt for his upon this very subject, which, somehow, seemed to be rather a good reason for following it. No, he would dismiss Sadie Burch and the letter forever from his mind. Very likely she was dead anyway, whoever she was. Four thousand a year! Not a bad income for a bachelor!
And while our innocent young Launcelot trudging uptown hardened his heart against Sadie Burch, by chance that lady figured in a short but poignant conversation between Mr. Ephraim Tutt and Miss Minerva Wiggin on the threshold of the room from which he had just departed.
Miss Wiggin never trusted anybody but herself to lock up the offices, not even Mr. Tutt, and upon this particular evening she had made this an excuse to linger on after the others had gone home and waylay him. Such encounters were by no means infrequent and usually had a bearing upon the ethical aspect of some proposed course of legal procedure on the part of the firm.
Miss Minerva regarded Samuel Tutt as morally an abandoned and hopeless creature. Mr. Ephraim Tutt she loved with a devotion rare among a sex with whom devotion is happily a common trait, but there was a maternal quality in her affection accounted for by the fact that although Mr. Tutt was, to be sure, an old man in years, he had occasionally an elfin, Puck-like perversity which was singularly boyish, at which times she felt it obligatory for her own self-respect to call him to order. Thus, whenever Tutt seemed to be incubating some evasion of law which seemed more subtly plausible than ordinary she made it a point to call it to Mr. Tutt’s attention. Also, whenever, as in the present case, she felt that by following the advice given by the junior member of the firm a client was about to embark upon some dubious enterprise or questionable course of conduct she endeavored to counteract his influence by appealing to the head of the firm.
During the interview between Tutt and Payson Clifford the door had been open and she had heard all of it; moreover, after Payson had gone away Tutt had called her in and gone over the situation with her. And she regarded Tutt’s advice to his client,–not the purely legal aspect of it, but the personal and persuasive part of it,–as an interference with that young gentleman’s freedom of conscience.
“Dear me!–I didn’t know you were still here, Minerva!” exclaimed her employer as she confronted him in the outer office. “Is anything worrying you?”
“Not dangerously!” she replied with a smile. “And perhaps it’s none of my business–“
“My business is thy business, my dear!” he answered. “Without you Tutt & Tutt would not be Tutt & Tutt. My junior partner may be the eyes and legs of the firm and I may be some other portion of its anatomy, but you are its heart and its conscience. Out with it! What rascality portends? What bird of evil omen hovers above the offices of Tutt & Tutt? Spare not an old man bowed down with the sorrows of this world! Has my shrewd associate counseled the robbing of a bank or the kidnapping from a widowed mother of her orphaned child?”
“Nothing quite so bad as that!” she retorted. “It’s merely that Mr. Samuel Tutt used his influence this afternoon to try to persuade a young man not to carry out his father’s wishes–expressed in a legally ineffective way–and I think he succeeded–although I’m not quite sure.”
“That must have been Payson Clifford,” answered Mr. Tutt. “What were the paternal wishes?”
“Mr. Tutt found a letter with the will in which the father asked the son to give twenty-five thousand dollars to a Miss Sadie Burch.”
“Miss Sadie Burch!” repeated Mr. Tutt. “And who is she?”
“Nobody knows,” said Miss Wiggin. “But whoever she is, our responsibility stops with advising Mr. Payson Clifford that the letter has no legal effect. Mr. Tutt went further and tried to induce Mr. Clifford not to respect the request contained in it. That, it seems to me, is going too far. Don’t you think so?”
“Are you certain you never heard of this Miss Burch?” suddenly asked Mr. Tutt, peering at her sharply from beneath his shaggy eyebrows.
“Never,” she replied.
“H’m!” ejaculated Mr. Tutt. “A woman in the case!”
“What sort of a young fellow is this Payson Clifford?” inquired Miss Wiggin after a moment.
“Oh, not so much of a much!” answered Mr. Tutt whimsically.
“And what was the father like?” she continued with a woman’s curiosity.
“He wasn’t so much of a much, either, evidently,” answered Mr. Tutt.
We have previously had occasion to comment upon the fact that no client, male or female, consults a lawyer with regard to what he ought to do. Women, often having decided to do that which they ought not to do, attempt to secure counsel’s approval of the contemplated sin; but while a lawyer is sometimes called upon to bolster up a guilty conscience, rarely is he sincerely invited to act as spiritual adviser. Most men being worse than their lawyers, prefer not to have the latter find them out. If they have made up their minds to do a mean thing they do not wish to run the chance of having their lawyer shame them out of it. That is their own business. And it should be! The law presents sufficiently perplexing problems for the lawyer without his seeking trouble in the dubious complexities of his client’s morals! Anyhow, that is the regulation way a lawyer looks at it and that is the way to hold one’s clients. Do what you are instructed to do–so long as it isn’t too raw! Question the propriety of his course and while your client may follow your advice in this single instance he probably will not return again.
The paradoxical aspect of the matter with Mr. Tutt was that while he was known as a criminal lawyer whenever he was asked for advice he concerned himself quite as much with his client’s moral as his legal duty. The rather subtle reason for this was probably to be found in the fact that since he found the law so easy to circumvent he preferred to disregard it entirely as a sanction of conduct and merely to ask himself “Now is this what a sportsman and a gentleman would do?” The fact that a man was a technical criminal meant nothing to him at all; what interested him was whether the man was or was not a “mean” man. If he was, to hell with him! In a word, he applied to any given situation the law as it ought to be and not the law as it was. A very easy and flexible test! say you, sarcastically. Do you really think so? There may be forty different laws upon the same subject in as many different states of our political union, but how many differing points of view upon any single moral question would you find among as many citizens? The moral code of decent people is practically the same all over the terrestrial ball, and fundamentally it has not changed since the days of Hammurabi. The ideas of gentlemen and sportsmen as to what “is done” and “isn’t done” haven’t changed since Fabius Tullius caught snipe in the Pontine marshes.
Mr. Tutt was a crank on this general subject and he carried his enthusiasm so far that he was always tilting like Don Quixote at some imaginary windmill, dragging a very unwilling Sancho Panza after him in the form of his reluctant partner. Moreover, he had a very keen sympathy for all kinds of outcasts, deeming most of them victims of the sins of their own or somebody’s else fathers. So when he learned from Miss Wiggin that Tutt had presumed to interfere with the financial prospects of the unknown Miss Sadie Burch he was distinctly aggrieved, less on her account to be sure than upon that of his client’s whom he regarded more or less in his keeping. And, as luck would have it, the object of his grievance, having forgotten something, at that moment unexpectedly reentered the office to retrieve it.
“Hello, Mr. Tutt!” he exclaimed. “Not gone yet!”
His senior partner glanced at him sharply, while Miss Wiggin hastily sidestepped into the corridor.
“Look here, Tutt!” said Mr. Tutt. “I don’t know just what you’ve been telling young Clifford, or how you’ve been interfering in his private affairs, but if you’ve been persuading him to disregard any wish of his father plainly expressed in his own handwriting and incorporated with his will you’ve gone further than you’ve any right to go.”
“But,” expostulated Tutt, “you know how dangerous it is to meddle with things like that. Our experience certainly shows that it’s far wiser to let the law settle all doubtful questions than to try to guess what the final testamentary intention of a dead testator really was. Don’t you remember the Dodworth case? A hypersensitive conscience cost our widowed client ten thousand dollars! I say, leave well enough alone.”
“‘Well enough’! ‘Well enough’!” snarled Mr. Tutt. “Are you going to constitute yourself the judge of what is well enough for a young man’s soul? I give you fair warning, Tutt: he’s heard your side of it, but before he gets through he’s going to hear mine as well!”
Samuel Tutt turned a faint pink in the region of his collar.
“Why, certainly, Mr. Tutt!” he stammered. “Do so, by all means!”
“You jolly well bet I will!” replied Mr. Tutt, jamming on his stovepipe.
Several days passed, however, without the subject being mentioned further, while the proper steps to probate the will were taken as usual. Payson Clifford’s dilemma had no legal reaction. He had made up his mind and he was going to stick to it. He had taken the opinion of counsel and was fully satisfied with what he had done. Nobody was going to know anything about it, anyway. When the proper time came he would burn the Sadie Burch letter and forget Sadie Burch. That is, he thought he was going to and that he could. But–as Plautus says: “_Nihil est miserius quam animus hominis conscius_.”
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 arguments.
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 you!–Here’s how!”
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, didn’t he?”
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 force?”
“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 effect.”
“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 moment’s hesitation.”
“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.”