By Advice of Counsel

by Arthur Cheney Train

"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.