“Really,” thought Dorothy, in spite of herself, “they seem like a very nice lot of old gentlemen.”
The presiding judge, a white-haired, rosy-cheeked, golfing-looking judge, arranged his robe, settled himself and took up the calendar.
“Kellogg versus Gamage?” he called inquiringly.
“Ready!” answered Mr. Tutt and Squire Mason in unison.
The rest of the cases were marked either “ready” or “adjourned,” and the presiding judge—familiarly known as the “P. J.”—leaned back and directed Mr. Tutt to proceed.
“If Your Honor please,” stated the old man, “this is an appeal from a judgment of the Supreme Court of Somersett County in favor of the plaintiff, Thomas Gamage, in an action brought for a declaratory judgment of forfeiture. Before I commence my argument, I respectfully ask permission to submit a supplementary brief. The fact is, I didn’t have the good fortune to find the authority upon which I chiefly rely until late yesterday.”
The P. J. reached for the bundle of slim brochures tendered him by Mr. Tutt and distributed them among his fellow bozos.
“I think we can extend you this courtesy,” he replied good-naturedly. “Of course, you’ll hand your opponent a copy and, if necessary, give him time to file an answer.”
“Of course,” bowed Mr. Tutt, proffering a similar leaflet to Squire Mason. “The case is here on stipulated facts. The testatrix, from whom title to the property in question derives, devised it to her only daughter, the appellant, on condition that the latter should not marry before she attained twenty-five years without the consent of her stepfather, the respondent, under penalty of forfeiting it to him.”
The youngest old bozo, who had comparatively little white in his hair and sat at the extreme left, glanced up suddenly, as if in recollection. Then his eyes slowly traveled the courtroom and came to rest on Dorothy.
“The appellant did marry without her stepfather’s consent and before that age,” continued Mr. Tutt. “The question before this Court is as to the effect of the clause limiting her freedom to do so.”
“Are those all the stipulated facts?” inquired the chief bozo.
“Yes. It’s a pure question of law.”
“This Court has repeatedly upheld the validity of conditions in trusts or wills restraining marriage on the part of the beneficiaries before a certain age without the consent of a third party,” interrupted the P. J.
Mr. Tutt bowed.
“We do not rely upon the claim that the limitation is invalid,” he remarked, almost casually.
Dorothy stiffened. But that was the only point in the case! What, in heaven’s name, did he rely on, then?
The old lawyer cleared his throat.
“We rely solely upon the facts”—he glanced sideways at Mason, whose nose was securely buried in Mr. Tutt’s supplemental brief—“which are, to say the least, unusual. Some ten years ago, the respondent-plaintiff, Gamage, appeared in the town of Pottsville, took up his residence at the local hotel, and made himself popular with the inhabitants—especially the more well-to-do, among them Samuel Tarleton, the original owner of the property in litigation and father of the appellant. When Tarleton died, Gamage married his widow, a sickly woman, over whom he had acquired a strong influence. During her last illness, she executed a will leaving her entire personal estate to her new husband, but devising the homestead, which had been in her husband’s family for more than a century, to her only daughter—now Mrs. Kellogg—whom I have the honor to represent on this appeal.”
He waved toward Dorothy, and the five old bozos looked at her with interest and obvious approval. Mason was still reading feverishly.
“However,” went on Mr. Tutt, “through some mysterious influence, upon the nature of which we can only speculate, the testatrix was induced to add the clause limiting the girl’s power to marry. The will was signed on April ninth.
“On April eleventh, Dorothy, then nineteen years of age, brought her fiancé, Doctor Alan Kellogg, to her mother’s bedside, informed her of their engagement and received her blessing. All this was known to the respondent. Nevertheless, the testatrix having died a few days later and the will having been probated, this man, Gamage, for the obvious purpose of acquiring the property for himself, refused to give his consent to the marriage.”
“I object!” roared Mason, coming suddenly to himself. “This is utterly improper! These alleged facts are entirely outside the record!”
“But are they true, counselor? I merely ask out of curiosity,” inquired the youngest old bozo.
Mason flushed.
“There is not a word of evidence in the record that any of them are true!” He glared at Mr. Tutt. “My opponent’s reference to them is outrageous.”
“Squire Mason is quite right,” answered Mr. Tutt patiently. “No, the facts to which I, unfortunately, referred are not in the record. I hope the Court will overlook my transgression.”
“This court has got to decide this appeal solely upon the record and nothing else!” declared Mason with severity.
“Don’t excite yourself, counselor,” remarked the youngest bozo. “You may rest assured that the Court will do as you so properly insist.”
“Go on, Mr. Tutt!” directed the P. J. “On the facts stipulated, how can you claim that your client has not forfeited the estate?”
Mr. Tutt paused dramatically.
“For the simple reason that under the law she has not done so. The plaintiff-respondent, Gamage, in the lower court failed to make out any case whatsoever. The governing rule, as set forth in my supplemental brief, is to be found in Jarmon on Wills, Volume II, at Page 853. It is to the effect that where a person would take an estate by inheritance, had there been no will, but does take it under a will containing a condition by which he may forfeit the property, he cannot be held to have incurred the forfeiture unless it be first shown that he was aware of the condition and broke it with full knowledge of what the consequences would be. The principle has been followed in Shackleford versus Hall, 19 Illinois 212; Merriam versus Wolcott, 61 Howard’s Practice 377, and several other cases in this country as well as in England. I have found none to the contrary.”
“I am not familiar with the doctrine you mention,” commented the P. J. “It must have been rarely applied, but it is eminently just. So you claim that your client knew nothing about this condition in her mother’s will?”
Mr. Tutt’s face assumed a mask as inscrutable as that of Judge Gamage. He, too, could hold four aces.
“My claim, Your Honor, is that there is nothing in the record—that record so zealously guarded by Brother Mason—to so indicate.”
Squire Mason leaped to his feet.
“Those aren’t the facts at all! Dorothy Tarleton knew all about her mother’s will. Judge Gamage warned her over and over again that if she married Doctor Kellogg she’d forfeit her share in the estate. The will was probated and public property. Everybody in town had read it. She did the whole thing deliberately. She never pretended she didn’t. Mr. Lecky always conceded she had.”
“If Brother Mason,” said Mr. Tutt quietly, “will show me a single word in the record to prove that Dorothy Tarleton had any notice whatever of the condition, I will consent to an affirmance of the judgment in his favor.”
Each of the old bozos had reached for the printed record before him and was studying its pages.
“What Mr. Tutt claims is all nonsense!” declared Mason excitedly. “Read the note she left! ‘This is to tell you that, although you are my guardian, I am going to marry Alan Kellogg without your consent, and in spite of what the consequences may be.’ That proves she knew there would be unfavorable consequences!”