"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