Arthur Train

“ 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. ”

“ 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! ”

“ 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. ”

“ 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. ”

“ 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!” ”

“ 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. ”

“ 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. ”

“ 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! ”

“ 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. ”

“ 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. ”

“ 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!” ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”