# Tut, Tut! Mr. Tutt/Hocus-Pocus
### HOCUS-POCUS

Of these rulings all that can be said is that they belong rather to some system which decides controversies by mumbling magic formulas before a fetich.
—Wigmore on Evidence, Vol. III, Sec. 1933, p. 2,574.
“Willie!” called Mr. Tutt in stifled tones from the top of the stepladder inside the closet that served as a safe-deposit vault for the firm’s papers, “Mrs. Grover’s will has got to be found! Understand? It’s here somewhere! Our reputation depends upon it. I remember putting it away perfectly. If necessary, I want you to go over every paper in the office!”
Willie, sitting upon the lower step of the ladder, fumbled vaguely in the tin box of papers in front of him.
“Sure, we’ll find it!” he coughed through the dust. “Say, Mr. Tutt, do you mind if I soak off some of these old internal-revenue stamps? I bet these papers aren’t any good to anybody!”
“Don’t you dare lay your hand on one of ’em!” thundered Mr. Tutt from the clouds above. “But if you can find Mrs. Grover’s will I’ll give you twenty-five dollars!”
“Gee!” exclaimed Willie, burrowing frenziedly into the mountain of documents heaped upon the floor.
The trouble was—as may have been already gathered—that Mrs. Caroline Grover, a wealthy client of Tutt & Tutt, had suddenly died, and her last will and testament, but recently drawn by the senior partner, could not be found. Never had such a thing occurred in the entire history of the firm. Not once in the half century that Mr. Tutt had been connected with the law had he lost a paper, either through his own fault or that of another. For, whatever their failings as a class may be, and however likely to lose their immortal souls, lawyers do not generally lose papers. And now, at this late date, Mr. Tutt had been guilty of that greatest of all the offenses—and they are legion—that a lawyer can commit: he had mislaid a will! Worst of all, by reason of its disappearance there was a possibility that one of the most charming young women in New York might suffer irreparable financial loss.
Yet he distinctly recalled having placed it in the will box—a large tin receptacle painted brown—only ten days before. Every other will was there except hers, and hers had been the last one to be put in! As he took each one out and laid it aside Mr. Tutt’s apprehension and excitement rapidly grew. No, the confounded thing wasn’t there! Again he went all over them and checked each one off against the list pasted upon the inside of the cover until there was a mark against each name except that of Caroline Grover, and the box was empty. Incredible! He threw the wills back helter-skelter and pawed them through again feverishly—frantically. No, there was no use trying to deceive himself, it wasn’t there!
He rang for Scraggs, Miss Wiggin, and Miss Sondheim and explained what had occurred, vainly seeking from them some clew to the missing document. None of them had seen it since its execution. Neither had Tutt—who shortly after arrived, and likewise ferreted through the will box without any result. Then both of them ransacked Mr. Tutt’s old mahogany desk from top to bottom, rummaged through Tutt’s desk, and finally emptied out all the drawers in the office—until the floors looked as if there had been a moderate-sized blizzard. No will! They moved the furniture, lifted the carpets, probed baskets full of papers which had stood undisturbed for years and which were covered with a pall of dust—all without avail. Agonizedly they looked at one another. Alack! Tutt & Tutt were ruined men!
The Grover files—among the first to be overhauled—yielded nothing. The one marked “Caroline Grover—Private” contained a file of the letters that had passed between her and Mr. Tutt relating to her affairs and the circumstances leading up to the making of the will, but the will itself was not there—nothing but the memorandum in Miss Caroline’s handwriting of her desires, indorsed, “Memo of my will, June 10, 1919,” which she had given to Mr. Tutt in order that he could draft the instrument in accordance with its terms.
“That’s something anyway!” ejaculated Tutt as his partner handed it to him. “If we can’t find the will we may be able to prove by this what it contained.”
Mr. Tutt shook his head dubiously.
“I don’t believe the court would admit it in evidence. Don’t you remember, I had to argue a case in the Appellate Division the day Mrs. Grover signed her will, so that I did not act as an attesting witness? Very likely the surrogate would hold that even if the will were lost I could not testify to what Mrs. Grover had asked me to put in it or produce her memorandum, on the ground that they were all confidential communications between attorney and client and so ‘privileged.’”
“But that would be rot!” protested Tutt. “Certainly, if she asked you to draw a will for her she’d want you to testify to its contents if it were lost. It’s no ‘privilege’ to have your wishes defeated!”
“Well, look up the law for yourself,” rejoined Mr. Tutt dryly. “I may be wrong. But even if I’m not it won’t be the first time in my experience that a law passed for the protection of a man has been invoked to ruin him; or, to use a celebrated simile, that what was intended to be a shield has been converted into a sword.”
Meantime, in the house on Fifty-fourth Street, Lucy Aymar, the adopted daughter of Caroline Grover, sat stunned at the loss of her protector, friend, and benefactor. Mrs. Grover had died suddenly, and yet, as the girl knew, she must have had a premonition that her end was not far off, for only the week before she had called her into the library and had said with a smile, trying to give a matter-of-fact air to the announcement: “I have just made my will, dear, and I have left everything to you. I tell you this so that you need not worry about the future. My brothers and their families are quite well enough off already.”
Lucy was perfectly familiar with the miserable story of how Mrs. Grover’s two brothers, both of whom had married rich women, had during the period of her poverty given her the cold shoulder. Then, as is quite usual, the totally unexpected had happened. Her husband’s inconspicuous invention, on which he had worked for years, suddenly became, through the development of the gas engine, of immense value. From living in a suburb and doing her own work Mrs. Grover found herself the mistress of a luxurious ménage, of motors and yachts, and free to go and do as she chose. As the couple had no children they had adopted—though not with the formality of legal process—the little daughter of an old friend, Jaspar Aymar—and brought her up as their own.
Then, too late, the two brothers and their wives had sought to reconcile their differences with the erstwhile shabby inventor, who, generous to all the rest of the world, found it impossible to forgive the neglect with which the would-be sycophants had treated him and his wife. Coldly he declined their hospitality and bade them seek other friends. Mrs. Grover never saw her brothers again during her life, yet now they were both downstairs asking to see Lucy Aymar. Why? She did not need to be told. They were not there moved by any desire to look for the last time upon the features of her whom they had once disregarded. They had not come to extend their condolences—save perhaps perfunctorily—or to offer their services. They were there to ascertain what disposition Mrs. Grover had made of the property inherited from her husband.
“I won’t see them!” declared the girl, feeling their intrusion upon her grief a personal affront.
The maid retired, but presently returned.
“They say, miss, it is absolutely necessary to know whether Mrs. Grover left a will and, if so, in whose possession it is.”
Miss Aymar bit her lips.
“Tell them that Mrs. Grover made a will and that it is in the custody of her lawyer, Mr. Ephraim Tutt.”
Great as was her own distress of mind over her loss, it was no greater than that of Mr. Tutt over the disappearance of Mrs. Grover’s will. He was, in fact, going through the severest mental torture of his legal life, and no lawyer will be surprised at this when it is stated that, apart from the memo in Mrs. Grover’s handwriting, there was no copy of the lost document, and that if the document could not be found its existence would necessarily have to be proved under the extremely technical requirements of the New York statutes. Like many another well-intentioned person, Mrs. Grover had postponed making her will until almost too late. It is a common failing of human nature to believe that though others may be taken suddenly away we personally shall have ample warning, with plenty of time to arrange our various earthly affairs. So good Mrs. Grover, whose single ambition was that Lucy should inherit her estate, had calmly neglected what was undoubtedly the most important act of her life until a stabbing pain in her side had warned her that, unless she took steps to prevent it, her undeserving brothers would fall heirs by devolution of law to that which she desired her adopted child to have.
Accordingly, she had sent for Mr. Tutt and, having discussed her affairs with him, had mailed him the afterward famous memo in which, having provided for a few comparatively trifling legacies, she gave all her residuary estate to Lucy, making her executrix.
It was the simplest possible testamentary declaration conceivable, and Mr. Tutt, having in Scraggs an experienced scrivener, had handed him the memo and instructed him to engross a will for Mrs. Grover following the usual office form.
Unfortunately, upon the day selected for the signing of the instrument in Mrs. Grover’s library Mr. Tutt had been obliged to appear in court, and the will was actually executed under the direction of the junior partner, the witnesses being three friends whom Mrs. Grover had invited to act for her in that capacity, and to one of whom she had read the will aloud the preceding evening.
Mr. Tutt had climbed down from the ladder in the vault and was standing in his office, waist high in a lake of papers, when Willie announced that Mr. Updycke was waiting outside. Assuming that the caller was an old college chum named Updycke, the lawyer bade Willie bring him in, and thereupon found himself unexpectedly confronted by an utter stranger, garbed in black, who it immediately developed was one of Mrs. Grover’s brothers and hence one of her two heirs-at-law and next-of-kin.
“I am a brother of the late Caroline Grover,” he said rather sharply. “I understand that my sister made a will and that it was left in your custody. Am I correctly informed?”
“Yes—I—that is to say——” stammered Mr. Tutt, his ordinary quickness of wit deserting him. “But——”
The heir-at-law fixed him with a penetrating eye.
“Ah!” he remarked. “But——”
“Yes,” answered the lawyer, recovering himself, “I drew Mrs. Grover’s will and she left it in my custody.”
The visitor glanced significantly about the disordered office and gave a short laugh.
“And you’ve lost it, eh?”
Mr. Tutt glared at him, speechless.
“Well!” said Mr. Updycke after a moment. “I’ve found out what I wanted to know. Good day!”
The morning after Mrs. Grover’s funeral Miss Aymar, sitting in the big leather chair beside the desk in Mr. Tutt’s office, learned for the first time of her unfortunate predicament. The old lawyer had made an abject and what was in truth a most piteous confession, and now he waited humbly for the storm of censure which he expected to fall upon him. But the storm did not break. Miss Aymar, whether from kindness, ignorance, or stupidity, did not seem to be greatly disturbed. She looked so adorable in her black gown that he felt more wretched than ever.
“It’s too bad that you have been put to so much trouble!” she said, smiling at him. “I do hope that you haven’t worried over it. No doubt we shall get along perfectly well without it.”
“I only wish I felt a like confidence!” he replied, a little relieved. She was a charming child! He would have given all he possessed for a daughter like her.
“But why not?” she answered. “I don’t see how there can possibly be any trouble about it. Mother Grover consulted you about her will, and not only told you exactly what to put in it, but gave you a memorandum in her own handwriting. Then your clerk drew it up and sent it to her, she read it aloud to Miss Block, and finally signed it under your partner’s direction and in the presence of three witnesses. Besides, she told me all about it. What more could the law require?”
“You’ll have to ask the law!” answered Mr. Tutt desperately. “Nobody knows what the law is, or is going to require, until he has to find out. There isn’t any proposition too ridiculous to be amply supported by authority—somewhere.”
“But where can any doubt arise? The mere loss of the paper when you have what is practically a copy of it, and when there are people who know exactly what it contained, certainly can’t deprive me of my rights!”
She gazed at him so incredulously, so pathetically, that Mr. Tutt took a high resolve that only over his dead body should she be deprived of them.
“‘We have strict statutes, and most biting laws,’” he quoted. “It’s a pretty serious matter to lose a will. The whole situation is covered by special and very stringent provisions as to the proof required to establish the contents.”
“But we have a copy or at least a memorandum!”
“True, but there are difficulties connected with putting it in evidence.” He rubbed his chin meditatively. “It all depends on the judge—and on the lawyers on the other side.”
“What other side?” she demanded quickly with a flash of suspicion.
“The Updycke side—the side of the heirs-at-law and next-of-kin, who will get all Mrs. Grover’s property if she is declared intestate.”
“You don’t mean that they would try to get the property when they knew that she didn’t want them to have it!”
Mr. Tutt laughed grimly.
“They’ve started in already!” he informed her. “They commenced a proceeding this morning to have Mrs. Grover declared intestate and to have themselves appointed the temporary administrators of her property.”
“But I told them she had made a will!” she exclaimed. “How despicable! No wonder she didn’t have anything to do with them!”
To Mr. Tutt’s intense relief her indignation was vented upon the unscrupulous Updyckes instead of turning against him. Yet after all he felt that he was the more guilty party. He was responsible for the whole wretched business, for the possible loss of Miss Aymar’s fortune. All he could do was to tell her the exact truth.
“It isn’t always fair,” he said gently, “to judge people harshly because they let the law decide what must be done in certain cases. They quite naturally take the position that the mere fact that you, an interested party, and I, your attorney, say that Mrs. Grover made a will in your favor isn’t conclusive. It’s up to us to prove it. We can hardly expect them to take our word for it.”
Miss Lucy wrinkled her low brows.
“No, but the judge can!” she retorted.
“Provided he admits our testimony,” qualified Mr. Tutt.
“Well, why shouldn’t he?”
The lawyer took a sheet of typewritten paper from his pocket and handed it to her.
“Under Section 1865 of our Code of Civil Procedure, in an action to establish a lost will,” said he, “you are not entitled to judgment unless first, the will was in existence at the time of the testator’s death; and second, to quote the words of the statute, ‘its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.’”
Miss Lucy’s face brightened.
“Why, then,” she declared, “everything is all right! We have a draft—that’s the same as one witness—and we’ve got Miss Block—that’s the other.”
Mr. Tutt shook his head in deprecation of her enthusiasm.
“Unfortunately,” he declared, “we have another statute, which the courts interpret very strictly. It is the one relating to confidential communications between an attorney and client, and reads: ‘An attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment; nor shall any clerk, stenographer or other person employed by such attorney or counsellor be allowed to disclose any such communication or advice given thereon.’ The statute then goes on to say that this applies ‘to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the … client.’ This, as you see, is a very sweeping law. The only exception made to it is in the case of an attorney who has acted as a subscribing witness to a will. There the law presumes that by making him a witness, who must perforce testify to be of any use as such, the client intended to unseal his lips.”
“But no honest person would invoke any such law to defeat the perfectly obvious intention of one of his relatives!” she protested.
Mr. Tutt pursed his lips.
“The obvious intention of the testator, as you call it, is the very point in issue. Who is to say what it was? The law provides that the question shall be determined by certain general rules and that a duly appointed judge shall act as umpire. Have we really any right to complain because our adversaries insist that the game be played to a finish according to the legal code?”
“Well,” answered Miss Lucy earnestly, “whatever the law may be, it seems to me that no honest person should invoke it to accomplish what he personally thinks to be a wrong or a suppression of the truth.”
Mr. Tutt smiled approvingly at her.
“Quite so,” he agreed heartily. “But you are talking now about honor, not about law—an entirely different thing.”
“But what shall we do?” she asked. “Surely I don’t have to sit supinely and let the Updyckes turn me out into the street!”
“Do!” he answered. “Do? What can we do but hope for the best? I have already drawn the petition in a proceeding to probate the lost will of Mrs. Grover, and have it here for you to sign. The two applications—ours for your appointment as executrix, and the Updyckes’ for the appointment of an administrator—will be heard together.”
“I can’t believe the law is as silly as you say,” she said cheerfully; “but, even if it is, I don’t worry the least little bit with you for my attorney. Why, I’m sure you can make it so plain to the judge that he will do anything you ask! I would!”
She got up and held out her hand trustfully.
“Don’t think anything more about it! You didn’t try to lose the old will. And very likely it will turn up again anyway,” she added.
He took her hand in his and patted it.
“I wish all my clients were like you!” he said earnestly. “I’ll do my best. And I’ll say this much—that it’s an awful fool law that hasn’t some way round it!”
It does not appear from Holy Writ that Solomon was a learned man, but merely that he was a wise one. Surrogates are apt to be learned men, but learned judges who are not also wise are inclined to revel in technicalities, and to become so logical that they overlook the spirit of the law in their strict application of its letter, and thus tend to bring it into ridicule. No system can afford to be so rigid that it breaks. The efficiency of the jury system lies in its elasticity. The successful judge is he who is no less a man because he is a judge. In a word, justice must not be so blind as to overlook the patent fact that human laws must be administered with a certain discretion. Otherwise—but Mr. Tutt was not really a Bolshevik!
Surrogate Pettingill, before whom the Grover case was to be tried, was celebrated for his exactitude of mind. Logic was his passion. In the application of a principle he was less flexible than the Flatiron Building, which is said to owe its permanence to the fact that it sways slightly in the wind. Does not all nature—human or otherwise—survive by virtue of the doctrine of give and take? Be that as it may, it was with a feeling akin to dismay that Tutt & Tutt found themselves confronted upon the morning of the trial by the learned Mr. Toddleham, attorney for the heirs-at-law and next-of-kin, an old crony of Judge Pettingill and a lawyer familiar with every technicality of the rules and practices of the Surrogate’s Court.
But the senior partner gave no sign of anxiety. With the urbanity of a Chesterfield—though certainly not, as Mr. Choate once said of another lawyer, with the suburbanity of a West-Chesterfield—Mr. Tutt rose to establish the lost will and testament of Caroline Grover, deceased. Miss Block, who had witnessed the will and to whom Mrs. Grover had read its entire contents, the preceding evening, was naturally his first witness. She was a palpably honest old lady who had nothing to gain by her testimony, and she swore positively that the testatrix had left all her property to Miss Aymar and designated her as executrix as well. The ancient Toddleham made no impression upon her by cross-examination and Surrogate Pettingill waved her from the stand with a courtly bow. Score one for Tutt & Tutt.
The two other witnesses to the execution of the instrument then gave their testimony. Although they were not able to testify to its contents, they swore that Mrs. Grover had stated that the document which she requested them to sign was her will, and that they had affixed their signatures immediately after that of Miss Block. Upon their uncontradicted evidence Mr. Tutt thereupon offered the will for probate.
The surrogate frowned.
“The code requires that the contents of the will be clearly proved by at least two witnesses,” said he.
“I have offered three,” declared Mr. Tutt.
“Only one as to the contents,” retorted the surrogate.
“But, Your Honor, if Miss Block identified the instrument signed as the one read to her by the testatrix and the others signed the same paper, there are three witnesses.”
Surrogate Pettingill looked bored.
“The law is clear,” he announced. “At least two witnesses are necessary to prove the contents—not the mere identity—of a paper. Besides, Miss Block cannot swear that the document Mrs. Grover read to her the evening before its execution was in fact the instrument which she actually witnessed. How could she? She assumes that it was, but she cannot know it for a fact!”
In the face of such pettifogging Mr. Tutt was stricken dumb. Was it possible that any sane human being could so stultify common sense by reason? However, there he was! He caught his breath and started in again.
“But a draft—or copy—is equivalent to one witness.”
“Precisely.”
“Well, there is a draft.”
The surrogate nodded. But first Mr. Tutt had another perfectly good witness to the contents of the will—Miss Aymar.
Even the surrogate, as she rose and came forward so gracefully, yet so diffidently, toward the bench, forgot momentarily that he was a surrogate in the unexpected discovery that he was a man.
“Ah!” he exclaimed gallantly, attempting to put her at her ease. “Take your time, Miss Aymar. There is nothing to be excited about. Are you quite comfortable? You do not mind the draft from that window?” Then embarrassed, he recalled the fact that he was a judge. “Um!” he growled. “You may proceed, sir!”
“Miss Aymar,” began Mr. Tutt, “did Mrs. Grover tell you anything about having made a will?”
“I object!” exclaimed Mr. Toddleham, popping up like a jack-in-the-box. “The witness is an interested party under Section 829 of the Code, and hence is precluded from testifying.”
“Quite so!” snapped the surrogate. “Sustained.”
“But she can testify to the contents of the will!” argued Mr. Tutt. “We need another witness.”
“I have ruled,” said the surrogate severely.
“Well,” remarked Mr. Tutt, “I will save an exception. Mr. Samuel Tutt—please take the stand.”
Tutt, arrayed as befitted the occasion, hopped to the chair in his usual sprightly manner and was sworn.
“Mr. Tutt,” said Mr. Tutt, “did you assist me in drawing up and revising the last will and testament of Caroline Grover?”
Again Mr. Toddleham interposed an objection. The witness’ testimony was, he pointed out, obviously within the prohibition of the statute which precluded an attorney at law from disclosing any communication made between him and his client in the course of his professional employment. The drawing of a will was clearly such a communication and had been so held in Loder vs. Whelpley, 111 New York Reports 239, at page 248.
“That is the law—unless Mr. Tutt was also an attesting witness. Were you?”
“No, sir,” admitted Tutt.
“Then this testimony cannot be received!” ruled the surrogate. “The point is perfectly well settled.”
Ephraim Tutt shivered internally. He had received the body blow which he had anticipated all along, though he betrayed no sign of it. This was not a propitious moment for his supreme effort. So he took Tutt out of the line and put in Scraggs, freshly barbered and otherwise in fighting trim. Since the alcoholic scrivener had actually drawn the will that Mrs. Grover had signed, and had done so from a memorandum in that lady’s own handwriting given to him by Mr. Tutt, he if anybody knew what was in it! But when he was asked to state what its contents were Mr. Toddleham objected again. The will drawn up by the witness, he argued, was not shown to be connected in any way with the paper signed by the testatrix. Scraggs had not delivered it to Mrs. Grover, but on the contrary had turned it over to Mr. Tutt, who had mailed it to her. She might or might not have received it. There was no way to establish that Scraggs’ will was the will which, in fact, she signed.
“But,” cried Mr. Tutt impatiently, “the contents show them to be the same.”
“That would be putting the cart before the horse, Mr. Tutt!” returned the surrogate with animation. “You are trying to prove the contents, are you not? Yes! Very well. To do so you must prove that the paper signed by Mrs. Grover was the identical paper drawn up by Mr. Scraggs. Until then he cannot possibly tell us what the paper contained, for the two documents have not been legally identified as one and the same. The last may have been utterly different from the first.”
“I propose to show that it was not, Your Honor, by proving that the disposition of the property in the two papers was identical.”
“But, my dear sir, that does not prove that the two papers referred to were identical,” retorted the surrogate delightedly, devouring the quibble with glee. “They may have been entirely different documents, even if their contents were exactly the same!”
“Oh!” returned Mr. Tutt. “If that is the point—and I agree entirely with Your Honor’s reasoning—then Mr. Scraggs’ testimony should be admitted as a declaration of intention on the part of the testatrix.”
“In that case I object to it as coming within the prohibition of Section 829 against the disclosure of confidential communications between attorney and client, Mr. Scraggs standing in pari passu with his employer,” interpolated Mr. Toddleham.
“Most clearly so!” ejaculated the surrogate. “That is quite obvious! Objection? Do I hear an objection? Sustained!”
If Mr. Tutt had not been so depressed at the predicament in which he found himself he would have greatly enjoyed this extraordinary exhibition of judicial agility. As it was he leaned over to Tutt and whispered in his ear: “Did you ever see such a pair of dodos? I’d like to knock their two noddles together!”
“Most certainly so!” returned Tutt solemnly. “That is quite obvious!”
“I most respectfully save an exception,” said Mr. Tutt, resuming his former position. “Luckily I have a draft of the will, which will satisfy the requirements of the code, as being equivalent to another witness. I will ask to be sworn.”
He stepped forward, took his seat in the witness chair and raised his right hand, while Surrogate Pettingill glanced significantly at Counselor Toddleham and smacked his lips. This was a choice morsel indeed! He had Mr. Tutt running round like a rat in a pit, and he was successfully blocking his escape at every turn. To him it was an exciting game. The giant of justice was bound and helpless by the spider’s web of technicality. There was Mrs. Grover’s will—everybody knew it was her will!—and every time Mr. Tutt attempted to probate it the surrogate pushed him back. And now the old lawyer was about to make his final attempt. The draft of the will in Mrs. Grover’s handwriting was in his breast pocket.
Smiling pleasantly at Pettingill he said: “With Your Honor’s permission I will examine myself. Question: ‘Have you in your possession a paper delivered to you by Caroline Grover as a draft of her proposed will?’”
“Object!” shouted Mr. Toddleham.
“Sustained!” chortled the surrogate. “No, no, Mr. Tutt!” It was tantamount to his saying: “Naughty! Naughty!”
“Oh, Lord!” muttered Tutt to himself. “Isn’t it sickening!”
“But, Your Honor,” protested Mr. Tutt, “what better proof could you possibly want than a copy of the will in Mrs. Grover’s own handwriting?”
“I don’t want any proof,” grinned Pettingill. “You’re trying to prove a lost will. I merely hold that you can’t prove it that way.”
Mr. Toddleham nodded in a highly commendatory manner.
“Precisely!” he enunciated.
Mr. Tutt’s weather-beaten face grew dark.
“If Your Honor please,” he said with an effort at patience, “the rules of evidence are for the purpose of getting at the truth—not obscuring it. Though it is true that under the law the communications passing between a lawyer and his client are forbidden to be disclosed by the attorney, this is for the protection of the client and is his privilege, which under certain circumstances he can waive if he chooses. Is there any doubt but that Mrs. Grover would waive it were she alive?”
“We cannot speculate upon what the dead would do if they were not dead,” replied the surrogate sententiously. “It is no longer possible for Mrs. Grover to waive the privilege of the statute by which your lips are sealed.”
“Yet,” argued Mr. Tutt, “as Professor Wigmore points out, though ‘it can hardly be doubted that the execution and especially the contents’—of a will—‘are impliedly desired by the client to be kept secret during his lifetime, it is plain that this confidence is intended to be temporary only, and that after the testator’s death the attorney should be at liberty to disclose all that affects the execution and tenor of the will.
“‘Otherwise what is intended for the client’s protection may become the means of defeating his wishes.’”
“That, however, is not the law of this State,” said Pettingill coldly.
“Oh, no!” chimed in Mr. Toddleham. “See Fayerweather vs. Ritch, 90 Fed., 13; Butler vs. Fayerweather, 91 Fed., 458; and Matter of Cunnion, 201 N. Y., 123—all directly in point!”
“Exactly!” agreed the surrogate with gusto. “I am quite familiar with all those cases.”
“Then,” cried Mr. Tutt angrily, “what you call a privilege is, in fact, a curse, and the law becomes ridiculous!”
The surrogate stiffened.
“That will do, Mr. Tutt! I do not care to hear any more comments from you of that nature.”
The old lawyer, confronted by an impassable barrier of technically sound and undeniably logical deductions, and so prevented from introducing positive and irrefutable proof of the justice of his cause, controlled himself with difficulty.
“I have in my pocket,” he said in a low voice, “the paper to which I refer, and I offer it in evidence.”
“Excluded,” gloated the surrogate, “on the ground that, as it was received by you in your confidential capacity as her attorney and produced by you as such, it is a privileged communication from Mrs. Grover and cannot be disclosed.”
“I except,” murmured Mr. Tutt. “In that case I ask that you grant me an adjournment until to-morrow morning.”
The surrogate smiled triumphantly and glanced at Mr. Toddleham.
“That is reasonable,” he admitted. “Adjourn court until to-morrow morning at ten o’clock.”
“Did you ever hear such utter rot!” wailed Tutt on their return to the office. “As for that old pettifogger—I’d like to crack his brain!”
“It’s not brain, but bran!” cried the senior partner. “I have never known anything so utterly absurd. Here we have a crowd of reputable witnesses who know exactly what was in Mrs. Grover’s will—one whom she consulted about it, another who drew it, a third to whom she read it, and two whom she told what it contained—besides a draft in her own handwriting of exactly what she wanted done—and yet for one reason or another the judge excludes practically every bit of evidence in the case. It’s not only absurd, it’s preposterous! It isn’t equitable—it’s criminal! The trouble is we’re law-ridden—at least as far as evidence is concerned! Give me the Continental system every time, and let the witnesses tell everything they know!”
“Except in criminal cases!” qualified Tutt, raising one eyebrow.
“Yes—except in criminal cases!” agreed Mr. Tutt hastily. “It almost makes me want to turn Bolshevik!”
“You’re quite Bolshevik enough already!” remarked Miss Wiggin as she appeared in the doorway, preceding Willie with the tea things. “You know perfectly well that though the law may work hardship in individual cases it is the crystallized wisdom of human experience. And we should respect it as such. The law protecting confidential communications is one of the most salutary that we have. You have only recently claimed that it ought to be extended rather than restricted—in the O’Connell case, you remember, where the defendant confessed to Miss Althea Beekman that he committed murder and she refused to testify.”
“Quite so,” answered Mr. Tutt helping himself to a piece of toast. “What I am raving about is the technical and iniquitous way in which perfectly good laws are applied. Here is a case where a testatrix’s wishes are going to be absolutely defeated because the court holds that I cannot put in evidence the draft of Mrs. Grover’s will which she left in my possession.”
“That seems hard!” acquiesced Miss Wiggin as she rinsed a cup for him with hot water. “What are you going to do about it?”
“I don’t see what we can do about it,” he groaned, “except to take an appeal.”
“There are times,” said Miss Wiggin soothingly, “when it must be very difficult for judges and lawyers to remain faithful to the law as it stands. And yet one thing is absolutely sure——” She paused and lifted the teapot preparatory to filling the cups.
“Yes—O wise Minerva?” said Tutt with a touch of condescension.
“And that is that our first duty is to obey the law whatever it is—no matter what the result may be. If we lawyers do not respect the law, who will? Besides, we have taken an oath to do so.”
“Nobody could respect the New York Code of Civil Procedure!” declared Tutt.
“Perhaps one could if he knew what was in it!” she retorted tartly.
Tutt grinned good-naturedly.
“I don’t pretend to—never did—if that’s what you mean!”
“Here’s your tea,” she said, passing it to him. “Even if the enforcement of a law is to result in what seems to be a wrong, to connive at an infraction or evasion of it is a greater one—the greatest that a lawyer can commit, for it attacks the very foundation of society.”
“Quite right—as usual!” admitted Mr. Tutt as he drained his cup and fumbled in the box for a stogy.
“Well, you can run that sort of thing into the ground!” asserted Tutt, wiping his mouth. “There’s no use in being overconscientious. You’ve got to have common sense about everything.”
“Common sense or—common honesty?” she shot over her shoulder as she went back to work.
Tutt flushed.
“I guess I’m as honest as the average,” he growled. “But I won’t stand seeing people robbed—even by the law that Miss Wiggin seems to think so perfect.”
“How are you going to help yourself?” inquired Mr. Tutt. “Take our present case—suppose one were willing to strain a point?”
Tutt whistled a bar or two thoughtfully.
“I don’t say I’d do anything,” he replied at length, “but I might—sort of—let things take care of themselves.”
“How do you mean?”
Mr. Tutt gazed at his partner searchingly.
“Look here, Mr. Tutt,” said Tutt. “This whole case apparently turns upon the comparatively trifling fact that when she died the draft of Mrs. Grover’s will was in your possession instead of hers.”
“Well?”
“Why shouldn’t it—still—apparently—be found among her effects?”
Mr. Tutt straightened.
“Do you suggest——” he began sternly
“No, no!” interrupted Tutt. “I don’t suggest anything at all. I merely say that if this infernal paper should, even now, turn up in Mrs. Grover’s desk I don’t imagine anybody would feel obliged—from this office—to suggest that it was a confidential communication prepared for the use of her attorney.”
Mr. Tutt was listening attentively—his mind in a turmoil. It was monstrous—and yet it was a fascinating idea!
“No,” he agreed slowly, “I wouldn’t go out of my way to do so.”
“And I don’t suppose you’d inquire too closely how it might have got there either?” went on Tutt shrewdly.
“No-o-o,” acknowledged Mr. Tutt.
“Well, then! Just keep your hands off and leave things to me a minute,” supplicated Tutt. “You can do as you like afterward, but give Fate a chance!” And as Mr. Tutt, like a bird charmed by Satan in the form of a serpent, offered no tangible opposition, Tutt pressed the button that summoned Willie, and as the latter entered for the tea things struck a Napoleonic pose and exclaimed in distinct, if pathetic, tones:
“I agree with you entirely, Mr. Tutt! It is indeed unfortunate that the mere fact that this paper”—he took it from his senior’s unresisting hand and tossed it on the desk in plain view of Willie—“was not in Mrs. Grover’s desk at the time of her death, but happened by merest chance to be in this office, may lose us our case! What a shame that it was not found among her effects—in her house! Why did we not have foresight enough to send it back to her? What a godsend it would be to poor Miss Lucy Aymar if it, or another exactly like it, could even now be found in Mrs. Grover’s desk or bureau! Yes,” he repeated with slow significance, “what an infinite blessing it would have been if this paper had been discovered lying in a drawer of Mrs. Grover’s desk!”
He paused sententiously. Then he apparently awakened to Willie’s presence for the first time.
“Oh! You there, Willie?” said he. “Er—what was it we wanted, Mr. Tutt?”
“I haven’t the remotest idea!” answered his partner as if in a dream.
“Whatever it was,” said Tutt, “it’s entirely slipped my mind!”
“Perhaps it was the tea things,” hazarded Mr. Tutt shamelessly.
Then he and Tutt ostentatiously rose and peered through the window with their backs to Willie. A moment later, when they turned round, Willie was gone. So was the draft of Mrs. Grover’s will.
It is the business of the recording angel and not mine—of which I am very glad—to determine just how outrageous Mr. Tutt’s conduct was and what should be done with him in the hereafter. No one—least of all he himself—will attempt to deny his joint moral responsibility for Willie’s subsequent acts.
“I’m all in!” he said, running his hands through his thin gray locks. “I don’t know how I stand on this business. I’ve got to think it over. I don’t like it, and yet—— I’m going up to the club and take a Turkish bath and—trust in the Lord!”
“And I,” remarked Tutt, “am going to take one last look round this office for that damned old will!”
Those readers who happen to recall the circumstances surrounding the historic case of Toggery Bill and how, in connection therewith, Willie had been rescued from the horrors of a juvenile reformatory by Mr. Tutt, will not fail to appreciate that what Tutt had just essayed was not exactly a shot in the dark. “Qui facit per alium, facit per se.” Willie was indubitably Mr. Tutt’s slave. No question of morals entered into the situation—so far as he was concerned. Whatever his master wanted, whatever would benefit or assist him in his profession—that was good. Slowly, as he washed up the tea things, his mind proceeded to visualize the nature of that assistance and the course, step by step, necessary to achieve it. Then, having put everything carefully away, he picked up his hat and silently stole out of the office and hurried to the subway. Fifteen minutes later, his being permeated by the delicious knowledge that he was about to do a favor to his benefactor, confer a blessing upon a beautiful young lady and at the same time outwit the law—for which he had a deep-rooted antipathy—he approached the Grover mansion whistling, surveyed it with the practiced eye of a born housebreaker and pressed the bell.
He was prepared to go any length to put that draft will where it would do most good—even if he had to cram it down Surrogate Pettingill’s wizened gullet. The trim maid who answered the bell laconically informed him that Miss Aymar had not yet returned home and Willie had only just time to back up against the edge of the door and press the catch, which left the handle free to turn upon the outside, before she closed it. It was long after four. Miss Aymar would soon be in. He walked the length of the block, keeping an eye on the house meanwhile, and having given the maid plenty of time to get below-stairs he slipped back up the steps again and stealthily opened the door. The lights had not been turned on and the hallway in which he found himself was almost dark.
It did not take him long to find the library, for at the end of the passage he saw the gleam of gilt upon rows of books. There was the desk—right in the bow window looking into the side area. On the mantel a heavy wheezing marble clock coughed five times as Willie lifted the desk top, and, selecting a small drawer upon the left-hand side, placed the draft carefully within it.
There had been a period in Mr. Tutt’s career when the ethical aspect of Tutt’s conduct would not have particularly worried him; but that was before the advent of Miss Wiggin, who undeniably had exerted a strong counter influence to that of the junior partner. In the old days he had been prone to fall in with Tutt’s clever and sometimes rather shady schemes, overlooking their questionability in his delight at their ingenuity and the element of risk involved in their execution, but the clear moral vision of their managing clerk and her uncompromising attitude toward anything but the highest standards had gradually come to predominate in the office, and if Mr. Tutt ever played too close to the line he carefully did so without her knowledge.
Now as Ephraim Tutt sat before his sea-coal fire after his Turkish bath, smoking his stogy and taking an occasional nip of brandy and water from the kettle upon the hob, he was fully conscious that what he had participated in doing would have called down the severest censure from Miss Wiggin, yet—— He smiled inscrutably into the glowing coals. That was a clever thought of Tutt’s. He wondered if Willie would. There was nothing wrong in putting the paper back in the house—for it belonged to Mrs. Grover! Not a thing!
There could be no adverse criticism unless the paper should be found and produced, and it would not be found unless, first, Willie should place it safely among Mrs. Grover’s effects; second, he, Mr. Tutt, should suggest a search; and, third, the paper having been thus discovered, he should produce it in court and offer it in evidence. It might be that none of these things would occur. Willie mightn’t have taken the paper at all. It might still be in the office. It would be an outrage if Miss Aymar should lose a million dollars just because a paper happened to be lying in one place rather than another! Nobody would hesitate in a case like that to take a chance, when not to do so would result in a hideous miscarriage of justice. On the other hand, argue as he would, he could not help feeling Miss Wiggin’s sternly disapproving eye upon him. Mr. Tutt was genuinely troubled and unhappy. Down below the bell tinkled and he heard Mandy, his faithful colored maid of all work, going to the door. Then there were voices—he recognized Miss Aymar’s. Good!
“Come right up!” he called cheerily, going to the head of the stairs.
“Excuse my interrupting you in the evening, but I had to leave court early, you know, and I wanted to find out how things went after I left,” she explained.
World-worn old Ephraim Tutt, sad, childless, and lonely, held out his withered arms to radiant youth. How charming her lithe, almost boyish figure, how lovely the smile on her flushed cheeks, how brilliant the light in her brown eyes! To hell with ethics!
“Why, my dear!” he answered, pushing a chair toward the fire. “The case—is—I hope—going—very well!”
It was not later than eight o’clock the next morning that Mr. Tutt, after a rather restless night, called Mrs. Bartlett, Miss Aymar’s housekeeper, upon the telephone.
“I would like to have you make another search of Mrs. Grover’s desk,” he said, “for the purpose of seeing whether, by any possibility, any papers—such as notes for making a will—have been overlooked. If you find anything kindly let me know.”
Mr. Tutt did not spring his surprise at the opening of court, for he did not wish to have it appear as a surprise. So he interrogated various other witnesses as to comparatively trifling matters, who did not help the case at all, but who created an impression of activity, and then summoned Mrs. Bartlett to the stand. She was an impressive-looking lady and she gave her testimony with a positiveness and wealth of detail that left nothing to be desired, and rendered impossible any suspicion of disingenuousness. She was, she said under Mr. Tutt’s gentle guidance, the late Mrs. Grover’s paid housekeeper, and had been so for fourteen years. In recently going over Mrs. Grover’s effects she had found a paper, among many others, which she was informed had an important bearing upon the case and which was entirely in her mistress’ handwriting and indorsed “Memo of my will.” This paper she produced and Mr. Tutt immediately offered it in evidence.
“Show it to Mr. Toddleham,” directed the surrogate briefly, and the Updycke forces crowded glowering about the attorney as they scrutinized the document.
“Well, I object to it as privileged,” said Toddleham finally.
“How privileged?” inquired the surrogate. “It isn’t addressed to anybody. It’s one of the deceased’s personal papers—found in her desk after her death. It has a convincing value as evidence—almost conclusive, I may say—of the testatrix’s testamentary intentions, and is equivalent to an additional living witness as to the contents of the will. I may be in error—if so, my action can be reversed through the greater wisdom of the appellate courts—but I will admit it. Mark it in evidence.”
“And now,” said Mr. Tutt, “I offer the will for probate—at least such parts as have been clearly substantiated by the evidence as required by Section 1865 of the Code.”
“I will allow it,” nodded the surrogate, “and deny Mr. Toddleham’s motion. Letters testamentary may be issued to Miss Lucy Aymar as executrix.”
That was all there was to it! Perfectly simple and easy! And neither member of the firm of Tutt & Tutt batted a lid or quivered as to a facial muscle. Yet Mr. Tutt had been guilty of gross professional misconduct—not a doubt of it!—and his conscience might—I say “might” advisedly—have rendered him quite miserable throughout his entire subsequent professional life had not Mandy, while passing him a liberal helping of chicken pie that evening, said as she drew forth a crumpled document: “I found dis yeah paper in dat ole pair ob trousers you tole me gib to de ash man—and I reckon it’s de same one I hear you and yo’ partnah making sech a fuss about.”
“Thanks, Mandy,” replied Mr. Tutt, as he stuffed the precious paper in his pocket. Then as he poured himself a glass of something out of a red bottle he mused: “‘Where there’s a will there’s a way’—and sometimes even when there isn’t!”
* ↑ See "By Advice of Counsel," p. 1
* ↑ See "Tutt & Mr. Tutt."