wrote the Judge a letter tellin’ him what she thought of him, and her and Alan motored over to Canajoharie and got married.”
“And the Judge claimed the homestead, as forfeited to him under his wife’s will?”
“You’ve said it!” assented Ma. “Up to that time, most of us had liked the Judge well enough, albeit we figured he’d done pretty well for himself, marryin’ the Widow Tarleton, but now we woke up to what he really was. And then came the toughest break of all. Alan got sick and was ordered to Arizona. He had to give up his practice; they spent all the money he’d saved, and Gamage—the old skinflint—wouldn’t turn a hand to help them. Of course, if Dorothy hadn’t married Alan, she’d own the homestead and could raise money on mortgage, but, as it is, the bank—it’s Mason’s bank, at that!—won’t lend her a cent. An’ now some realty company has offered the Judge fifty thousand dollars for it, provided he can give ’em a clear title, and he’s brought an action to have the Court declare that the place belongs to him. The town is all het up about it. The case is goin’ to be tried this very mornin’ down to the courthouse, before Judge Tompkins.”
“What does Mrs. Kellogg look like?”
“She’s dark and slim and has beautiful eyes. You’d love her.”
Mr. Tutt allowed the smoke of his stogie to eddy slowly from his nostrils.
“Has she got a lawyer?”
“Only sort of. Of course, she couldn’t afford to pay a reg’lar fee, but old Mr. Lecky, from Patterson Corners, has offered to defend her. Do you think she’s got any chance?”
“Not if she acted with her eyes open.”
“Well, she did! She had it out with her stepfather over and over again. The hull town knew about it.”
“Then, in my opinion, she hasn’t got a leg to stand on,” replied Mr. Tutt, pushing back his chair.
“Where are you goin’?” asked Ma anxiously.
“I had intended to go fishing,” answered the old man. “But after what you’ve told me, I think I’ll wander over to the courthouse instead.”
The judge had just gone on the bench when Mr. Tutt succeeded in working his way through the throng inside the courtroom to the rail. The entire countryside had turned out to see the legal melodrama in which Judge Gamage was playing Doctor Jekyll and Mr. Hyde. The parties and their respective lawyers were already in their places—brick-cheeked Squire Mason opposite the jury box, beside a flabby Buddhalike man with a vacant, pasty face and no eyebrows; Dorothy Tarleton—whom Mr. Tutt instantly recognized—at the adjoining table with her counsel, Mr. Lecky, a mild-mannered, asthmatic octogenarian, who had been a friend of her father’s.
“Gamage versus Kellogg,” called the clerk.
The courtroom hushed and Squire Mason stood up.
“If Your Honor please,” he began pompously, “this is an action for a declaratory judgment of forfeiture under the will of the late Louisa Gamage, who devised her two-hundred-acre estate, together with the house and buildings thereon, to her daughter, then Dorothy Tarleton, now Dorothy Kellogg, provided, however, that the latter should not marry before she reached the age of twenty-five years without her stepfather’s—my client’s—consent, in which case the property should go to him. There is no dispute whatsoever as to the facts. At nineteen years of age the defendant did marry, not only without the consent of the plaintiff, her legally appointed guardian, but in absolute defiance of his wishes. In fact, she eloped. That’s all there is to the case. I have here certified copies of the will and marriage certificate, also an original letter to the plaintiff in the defendant’s handwriting, which she left behind her. I offer them all in evidence.”
“Any objection?” inquired Judge Tompkins.
“No, Your Honor,” said Mr. Lecky. “There is no dispute as to the facts. Squire Mason has stated them quite correctly. My client, Mrs. Kellogg, did marry before she was twenty-five without her stepfather’s consent.”
“What, then, is your defense, counselor?”
The old man tottered to his feet.
“Our claim,” he wheezed, “is that the condition in her mother’s will limiting my client’s right to marry is void as against public policy.”
“A pure question of law?”
“Purely a question of law.”
“In that case,” suggested Tompkins, “why should not both parties stipulate on the record that the facts are as stated by counsel for the plaintiff?”
“That is satisfactory to me,” replied Mr. Lecky.
The judge nodded to the stenographer.
“Note the stipulation, Mr. Grady,” he directed.... “Now, counselor, why do you say that the testatrix couldn’t legally make the provision in question?”
“Because the law has always frowned upon limitations upon the right to marry as against public policy,” declared Mr. Lecky stoutly.
“Pardon me,” interposed Mason, “but such conditions have repeatedly been held valid in this state. Your Honor is, of course, familiar with Hogan versus Curtin, 88 New York 171.”
Dorothy looked up anxiously at her aged champion.
“Hogan versus Curtin does not apply,” answered Mr. Lecky, “for the simple reason that there the condition against marriage was limited to twenty-one years. Since, at the time that case was decided, a woman could not legally marry under twenty-one in any event, no additional limitation was placed by the will upon her right to marry. Now, if, in the present instance, the testatrix had been content to provide that her daughter must secure her guardian’s consent to marry merely before she became of age or else forfeit her property, I concede that the clause would have been a proper one. When, however, she sought to extend the period to twenty-five years, she went too far. To attempt to limit the defendant’s freedom to marry after her majority is unreasonable, and hence void.”
Judge Tompkins peered over his spectacles at Mason.
“How about it, counselor?”
The Squire, with a complacent grin, lifted a volume of reports from the table before him.
“The question of minority or majority doesn’t come into it!” he asserted triumphantly. “In the English case of Yonge versus Furse, 8 D. M. & G. 766, it was held that a precisely similar condition against a person marrying under the age of twenty-eight was valid.”
Mr. Tutt’s heart sank beneath his waistcoat. His sympathies were already enlisted upon the side of the dark-haired girl, who had tossed her future over the wall to marry for love.
“Is that so?” exclaimed Tompkins, reaching for the book. “H’m! That would seem to settle it, unless Mr. Lecky has some other authorities.”
Mr. Lecky shook his head.
“I have none. But in view of Your Honor’s attitude, I should like to have the plaintiff take the stand for a moment.”
“I object,” answered Mason.
